LEGEND has it when Henry David Thoreau went to jail to protest an unjust law, his friend, the philosopher Ralph Waldo Emerson, visited him and asked, "Henry, what are you doing in here?" The great nature writer replied, "What are you doing out there?"
The Supreme Court has just flinched from its responsibility to stop the unjust jailing of two journalists - not charged with any wrongdoing - by a runaway prosecutor who will go to any lengths to use the government's contempt power to force them to betray their confidential sources.
The case was about the "outing" of an agent - supposedly covert, but working openly at C.I.A. headquarters - in Robert Novak's column two years ago by unnamed administration officials angry at her husband's prewar Iraq criticism.
To show its purity, the Bush Justice Department appointed a special counsel to find any violation of the 1982 Intelligence Identities Protection Act. That law prohibits anyone from knowingly revealing the name of a covert agent that the C.I.A. is taking "affirmative measures" to conceal. The revelation must be, like that of the 70's turncoat Philip Agee - "in the course of a pattern" intending to harm United States intelligence.
Evidently no such serious crime took place. After spending two years and thousands of F.B.I. agent-hours and millions of dollars that could better have been directed against terrorism and identity theft, the prosecutor, Patrick Fitzgerald, admits his investigation has been stalled since last October. We have seen no indictment under the identities protection act.
What evidence of serious crime does he have that makes the testimony of Judith Miller of The New York Times and Matthew Cooper of Time magazine so urgent? We don't know - eight pages of his contempt demand are secret - but some legal minds think he is falling back on the Martha Stewart Theory of Prosecution. That is: if the underlying crime has not been committed, justify the investigation by indicting a big name for giving false information.
Thus, if the reporters resist the coercion of the loss of their freedom, the prosecutor can blame them for his inability to go to trial on the "heavy" charge. But if they cave in, he can get some headlines on the ancillary charge of false statements. (I have known Judy Miller, a superb and intrepid reporter, for a generation; she'll never betray a source.)
The principle at stake here is the idea of "reportorial privilege," embraced in shield laws in 49 states and the District of Columbia, but not in federal courts. That privilege not to testify - held by lawyers, members of the clergy, spouses and others - gives assurance to whistleblowers that information confided to a reporter revealing corruption or malfeasance in government will not result in loss of job or more severe retaliation from on high. (Most of the states' attorneys general, recognizing the value of press leads in law enforcement, strongly supported the reporters in this case.)
To every privilege there are exceptions; a lawyer, for example, cannot conspire with his client in committing a crime, and a reporter's testimony may be necessary in a capital case. But this investigation has shown no national security crime at all, as defined in the identities act. Maybe an official misled an agent, or even perjured himself to save his job; is that sufficient cause to incarcerate innocent journalists and impede the entire press's traditional means of exposing official corruption?
Here's what needs to be done now:
1. The judge should resist the prosecutor's pressure for coercive, lengthy and possibly dangerous confinement. Judy won't crack and should not be made to suffer.
2. The prosecutor should submit an information bewailing his witness difficulties in fingering sources in false denial, but showing why no major national-security crime had been committed.
3. Mr. Novak should finally write the column he owes readers and colleagues perhaps explaining how his two sources - who may have truthfully revealed themselves to investigators - managed to get the prosecutor off his back.
4. The Congress should urgently hold hearings on shield bills to conform federal practice to the states' laws based on Congress's 1975 directive to the Supreme Court to apply "reason and experience" to extending privilege - which the court did in its 1996 Jaffee decision to psychotherapists.
The contempt epidemic is spreading fast. Yesterday, a federal appeals panel in the District of Columbia followed up the Supreme Court flinch by forcing a New York Times reporter and three other journalists in a different case to burn their sources or be sentenced. Along with Judy and Matt, these endangered journalists can look at plumber-prosecutors, smirking media-bashers and the wimps taking official handouts and ask:
"What are you doing out there?"
William Safire is a former Times Op-Ed columnist.