The reporters being subpoenaed over who leaked an undercover CIA operative's name and those facing actual jail time for refusing to reveal their sources are friends of mine. Or at least they were until this column. I do not want them to go to jail.
The problem is this: Should it be illegal for a government official to reveal the identity of an undercover CIA agent? Most reasonable people, including most reporters, would probably say yes. Lives can be at stake. But for all practical purposes, such a law (which in fact we have) is unenforceable if a government official chooses to reveal the agent's identity to a journalist, and the journalist ignores a subpoena to testify about it.
One of the farcical aspects of this investigation, conducted by a special prosecutor and costing millions of dollars, is that there is no mystery. At least half a dozen prominent people know for sure who did the leaking. Just from reading the newspapers, it sure seems as if everyone in Washington thinks one of the leakers is some guy in the vice president's office named Skippy, or Snapper. Or something.
"Everyone in Washington thinks" is a good enough standard for most purposes. But not for a criminal prosecution. For that, you need evidence beyond a reasonable doubt. And if the crime consists of a private conversation between two people, you need at least one of them to 'fess up. The government official is protected against self-incrimination by the Fifth Amendment. If the journalist has an absolute right and an absolute duty to shield the identity of a source, both sides of the conversation are immune and prosecution is impossible.
It is certainly true that anonymous sources are a valid and important tool of journalism. It is also true that undercover agents are a valid and important tool of espionage. Journalism and espionage both serve the public interest, most of the time. Does the journalism profession really want to get into an argument about whose secrets are more important? That is the argument it is careening toward with the insistence that the legal system should allow journalists absolute protection for their sources, even if that leaves espionage with no legal protection at all.
In some ways, a reporter's agreement to guarantee anonymity to a source is a commercial contract like any other. The government enforces contracts so that people will be encouraged to make them. But some commercial contracts don't serve the public interest. Drug deals, for example. That's why you can't take your dealer to court over the kilo of cocaine he promised.
Today's question is not about enforcing an agreement. It's about forcing a journalist to break one. But the underlying issue is the same: Does it serve or harm the public interest for covert intelligence agents to be outed? If it doesn't serve the public interest, why should the government encourage this outing by letting journalists avoid the duty of every citizen to testify in a criminal investigation?
In the cult of the anonymous source, worshipers visualize the object of their adoration as a noble dissident, courageously revealing malfeasance by a powerful institution that will wreak a horrible revenge if the source is uncovered. But most leaks from newsworthy institutions are more like the one in the news now. This was a leak plotted by the powerful institution itself - the White House - for the purpose of stomping on exactly the kind of dissident (the operative's husband this time) who plays the hero's role in the generic leak fantasy.
People leak for various reasons. Sometimes they are truth-tellers exposing institutional lies. Sometimes they are promoting an institutional agenda and want anonymity because they are spreading lies. Very often they have no reason. It's amazing what people will say just because you ask. A more selective philosophy about protecting leaks would not force journalists to betray their sources. It would make them think twice before offering anonymity in the first place.
What journalism needs is guidelines about when a source should be promised anonymity. The more refined and widely accepted these guidelines are, the fewer times a journalist must face the choice of betrayal or jail. This isn't much help for those who already made these promises. But if the profession would only display a bit of perspective about its own importance and its own problems, maybe society - and the special prosecutor - could be persuaded to allow past promises to be kept, in exchange for less promiscuous promising in the future.
Anonymous-source absolutists say that if you start making distinctions between good leaks and bad leaks, or important leaks and unimportant leaks, or leaks that depend on promised anonymity and leaks that would happen anyway, potential leaks of all sorts will plug up. No doubt selectivity about anonymity would have a chilling effect on all leaks, not just bad or unimportant ones.
"Who's to decide what serves the public interest?" is a good argument for the absolutist approach. Or it would be if protecting journalists' sources never had any cost to anyone else. But it does.
• Michael Kinsley is the Editorial and Opinion editor of the Los Angeles Times. © Los Angeles Times.