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To Tell, Or Not To Tell:  That Is the Question

Two American journalists could go to jail in their own country, not because the government wants to silence them, but because they refuse to cooperate in a criminal investigation. The case stems from a newspaper column that identified an employee of the Central Intelligence Agency. Many in the media called for an investigation into the disclosure of the identity of a secret operative. But the investigation is now targeting the press.

Conservative columnist Robert Novak, who said he received the information from "two government officials", published the name of Valerie Plame in an article last summer, identifying her as an undercover CIA operative. Some suspect Ms. Plame's name was revealed as retaliation by the government against her husband, Ambassador Joseph Wilson IV, a vocal critic of the Bush administration's Iraq policy.

A government investigation is underway to determine the identity of the officials who leaked Ms. Plame's name. The disclosure or the so-called "outing" of a CIA agent is an offense punishable by as much as 10 years in prison. The targets of the investigation now are two other journalists who were also contacted by the leakers of Ms. Plame's name. They are under court orders to comply with investigators' demands to reveal the identity of these government sources. Both have refused by invoking their journalistic privilege to protect their sources and are now facing the possibility of imprisonment.

The argument in favor of legal protection for a reporter's promise of confidentiality is that the public interest is best served by making sure that whistle-blowers can take their story of government wrongdoing to the media anonymously to avoid the risk of reprisal. William Feroggiarro, former head of the Freedom of Information Program at the National Security Archive in Washington says the privilege is essential to free flow of information.

"Very often these sources are in disagreement with the government policies or are alerting the public to malfeasance or corruption. It is something that sources cannot go on record about. So this is essential information that would not otherwise come to the public. Confidential sources like this also provide a road map for reporters in getting access to information that is absolutely in the public interest."

Mr. Feroggiarro says the Watergate scandal, which has become synonymous with government corruption, was heavily influenced by the initial investigations of Washington Post reporters Bob Woodward and Carl Bernstein and their mysterious informant called Deep Throat, whose identity remains a secret to this day.

Arguably the most important Supreme Court case ever on freedom of the press was the battle over the publishing of the Pentagon Papers, a study that revealed a considerable degree of deception on the part of the U-S policy makers in the Vietnam War. The Supreme Court sided with the New York Times and the Washington Post, two newspapers that had begun publishing excerpts from the study.

"Both of those stories, Watergate and Pentagon Papers, came to the light of day only through investigative reporting. Pentagon Papers involved a leak of documents to a reporter who then published them. That was essential to the debate about Vietnam and without that kind of involvement and protection of a source the whole debate might have come around much later. More Americans would have been killed, more Vietnamese killed. So that's a very important example of how a confidential source can completely alter the frame of debate," says Mr. Feroggiaro.

The Valerie Plame case differs from either Watergate or the Pentagon Papers, counters Eugene Volokh, professor of Law at University of California. While the government has a duty to seek the truth, he says, reporters, no less than any other citizen, have a duty to tell authorities about criminal conduct they may have witnessed. "It is important to talk to the journalist not because he is a journalist but because he is a witness. Imagine there was a murder and there is exactly one witness. Surely the police and the prosecutors would want to talk to the witness because without him they would have a very hard time to figure out who did the killing," says Professor Volokh.

Professor Volokh, along with other legal analysts, believes the best solution would be to use the attorney-client privilege. Communications between clients and attorneys are protected, but also limited. Communications that facilitate crime or fraud are not protected. "We ought to give them special protection beyond what ordinary citizens have similar to what lawyers, spouses, psychotherapists, the clergy might have. But you have to consider both the interest in protecting the journalist and the interest in investigating illegal conduct," says Professor Volokh. Thirty-one American states already have laws to protect the media from compelled disclosure of their sources, but they are not blanket exemptions for journalists. A reporter can be subpoenaed to testify when all other means are exhausted. Senator Christopher Dodd, Democrat from Connecticut, has introduced a bill that would establish the privilege in federal court. The bill is likely to pass. Most analysts agree, such a law would protect the public as well as the press.