Why should you care about reporters’ rights?

IS there really any reason for you to care that lawyers acting for Vice President Dick Cheney’s former chief of staff, I. Lewis “Scooter” Libby, this week served subpoenas on the New York Times, Washington Post, Time magazine and at least four journalists?

Does it matter that CIA Director Porter J. Goss, not content with ransacking his agency’s Langley, Va., headquarters looking for leakers and polygraphing every spook in sight, told a Senate committee that “it is my aim, and it is my hope, that we will witness a grand jury investigation with reporters present being asked to reveal who leaked” classified information?

Does it matter to anyone outside the news media that, in papers filed in connection with its prosecution of two pro-Israel activists last month, the Justice Department actually argued that journalists who obtain or publish classified information are liable for prosecution under the Espionage Act of 1917?

Libby’s lawyers say that defending their client against charges he lied to a federal grand jury probing the leak of former CIA agent Valerie Plame’s identity to reporters requires that they be allowed to question New York Times columnist Nicholas D. Kristof, former Times reporter Judith Miller, Time’s Matthew Cooper and NBC News Washington bureau chief Tim Russert. They also want to see any notes, e-mails, memoranda, draft articles or any other documents these journalists’ news organizations may have relating to their work on the Plame story.

Miller, you’ll recall, never actually wrote a story about the former agent. Her lawyer, Robert S. Bennett, said it was “highly likely” that Miller would fight the subpoena, which he called “entirely too broad.”

Broad hardly begins to describe it. This thing is wider than your Aunt Margaret’s rear end. This is no legitimate defense request for exculpatory information; it’s a fishing expedition. Don’t look for its inspiration in the common law, but in Dickens’ Mr. Micawber: “Something, my Dear Copperfield, will turn up.”

It’s perfectly true that defendants in criminal cases have rights to call reporters to the stand that government agencies and prosecutors should not have. The reason is simple: The government has all the investigative power of the state at its disposal. It rarely -- if ever -- has the need to obtain information from journalists, since it has so many other avenues to collect it. Grilling reporters may be more convenient -- and satisfying -- but it’s not essential. An accused individual, on the other hand, confronts the government’s power and has a right to all the material assistance required to vindicate his or her rights by forcing the prosecution to prove its case.

In such instances, the defendant’s 6th Amendment right to a fair trial trumps most -- but not all -- 1st Amendment considerations. That’s as true for Scooter Libby as it is for a garden variety petty thief. Note the qualifying phrases, however, since the presumption here is that one constitutional right will be balanced against the other. The assertion of one liberty should not obliterate the other. That’s why we have judges and, sooner or later, one of them is going to tell Libby’s defense attorneys to reel their line back in.

And, strangely enough, that’s what both sides probably will be relying on here. It’s also what makes Libby’s legal strategy so shabby and reckless. His lawyers know that the news organizations involved are not going to comply with these subpoenas without a fight -- and that they have the resources to take that struggle all the way to the Supreme Court, as Libby does.

By the time that occurs, most of the people involved in this thing will be collecting Social Security or government pensions.

In fact, the strategy Libby and his attorneys are pursuing is a variation on the one usually employed by foreign spies. They know that the government doesn’t want to compound whatever damage their espionage has done by exposing sensitive information in court, so their lawyers routinely threaten long, expansive trials unless the government agrees to offer a plea bargain. The spy saves his wretched life or gets a shorter sentence; the government gets to keep whatever secrets it thinks it has left.

The irony of watching this security-obsessed tough guy scurry for the protection of a legal strategy devised for the benefit of Soviet spies is amusing, but doesn’t compensate for the risk of violence to the 1st Amendment inherent in this situation.

So why should you care?

Well, as the late Johnnie L. Cochran used to say, “There’s a reason everybody should believe in due process. You can guarantee that you’ll never knowingly commit a crime, but you can’t guarantee that nobody ever will accuse you of one.”

You should object to what Libby, Goss and the Justice Department would like to do to these reporters and editors because the free press asserts 1st Amendment rights on your behalf.

That’s why you should care whether reporters and editors are dragged into court -- as is being proposed in the Libby case -- and interrogated about what they knew and thought rather than what they saw or wrote. It matters when prosecutors and defense attorneys essentially are permitted to enter the offices of your newspaper, television network or newsmagazine of choice -- as also is being proposed -- and allowed to rummage as they will through e-mails and files and memos and notes that were used to keep you informed. It matters when the director of Central Intelligence says he wants to see reporters hauled before grand juries in what amount to star chambers and forced to reveal their sources -- or else. It matters when even serious-minded people begin to argue, as some have in places like the Weekly Standard, that investigative reporters who discomfort the administration should be prosecuted under the Espionage Act.

Is any substantial number of Americans really prepared to accept the proposition that a reporter going about the business of journalism is legally or morally the same as a hostile power’s secret agent? Clearly, a bitter and ideologically intoxicated minority is prepared to do that, but what then?

When Americans are at each other’s throats in this fashion, who stands to gain in this dangerous world we now inhabit? Why bother with terrorist plots when the reckless and self-interested among us are eager to batter into rubble the very foundations of our constitutional democracy.

As Gary Pruitt, who runs the McClatchy newspaper chain, wrote in the Wall Street Journal this week: “Self-government depends on continuous civic conversation, which in turn depends on people having a common vocabulary. Without a shared sense of what the problems are, there’s little hope of finding solutions. That shared middle -- a place where people basically agree about the facts and the issues, even if they differ over what to do about them -- is where we believe our responsibilities as newspaper owners lie. And it is under assault by spinmeisters, partisans and ideologues. They all have their place in a democracy -- but it is not in the center. Our place is.”

Unless reporters and editors are free to go about your business, there will be nothing in that center but silence.

Under our system, it’s neither permissible nor desirable for the press or any other institution to stand above the law. At the same time, there will be no free press if reporters and editors constantly are looking over their shoulders at a cop, a prosecutor or a process server.

The candid, wide-ranging civic conversation stimulated by a free and vigorous press may discomfort those in power and make governance more difficult for them. Naturally, they’d like a little peace and quiet, so they can do what they want without inconvenient objections.

Silence always has been freedom’s enemy -- and that’s why you should care about these subpoenas.