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Politics taints probe of CIA leak

SOMETHING STINKS to high heaven about the threat to send New York Times reporter Judith Miller to jail. Miller refused to betray sources she interviewed in trying to learn who leaked the name of a CIA agent to conservative pundit Robert Novak.

The back story: On July 12, 2003, Novak published a column in The Washington Post blowing the cover of CIA operative Valerie Plame, citing two high administration officials as his sources.

Plame's husband is former ambassador Joseph Wilson IV, who had undertaken a secret mission at the request of the CIA to investigate what proved to be a fake story about the government of Niger providing nuclear material to Saddam Hussein. The Niger story figured prominently in Bush's justification for war and his disparagement of UN weapons inspectors, even though it had already been disproven by Wilson's mission. Wilson, now retired, was so appalled at the administration's misuse of a discredited story that he went public with his information.

The administration's leak to Novak, ''outing" Wilson's wife, Plame, was part of a clumsy campaign to discredit and punish Wilson. The administration line was that Plame supposedly suggested Wilson for the Niger assignment, though that allegation has never been confirmed.

It is a felony for a public official to expose the identity of a CIA agent. After Novak's column was published, Democrats in Congress demanded and got the administration to name a special counsel to investigate the leak. Attorney General John Ashcroft recused himself. His deputy named Chicago US Attorney Patrick Fitzgerald, supposedly a man of high principle and unblemished reputation.

Fitzgerald interviewed many people. He ultimately went after two reporters who had worked on the story of who had leaked to Novak. They were Miller of the Times and Matt Cooper of Time magazine. Both now face jail, as early as this week.

Both have refused to disclose sources despite court orders obtained by Fitzgerald. The Times has stood behind Miller. Time Warner management last week shamefully caved in and turned over notes to the prosecutor. The Supreme Court has declined to review the case.

But what about Novak? He obviously knows who leaked the name to him. Why is Miller, who never even wrote an article, facing jail? If anyone should be threatened with contempt of court, it is Novak.

There are only two possibilities. Either Novak did tell the prosecutor the names of the officials who leaked the name and the prosecutor is going easy on them, or Novak refused and the prosecutor is going easy on Novak. Either explanation reeks of favoritism, selective prosecution, and cover-up.

One leading suspect of having leaked Plame's identity is the president's chief political adviser, Karl Rove. Given how utterly Machiavellian Rove is, readers who take press reports of Fitzgerald's pristine independence at face value are touchingly naïve.

Given the stakes, do you really think this administration would let a Justice Department official just pick some highly independent prosecutor to launch a wide ranging probe -- one that could net Novak, a reliable administration toady, and the chummy high officials Novak talks to, say, Rove or Vice President Dick Cheney?

Nor is it an accident that this investigation, rather than fingering whoever inside the administration broke the law by outing Valerie Plame, is instead putting the squeeze on two news organizations that just happen to have been critical of the Bush administration, Time magazine and The New York Times, and by extension the entire press corps.

There is no federal press shield law protecting the right of reporters to protect sources, though several states have such laws. And the Supreme Court, in a 5-4 decision back in 1972, rejected the contention that the First Amendment implicitly gives reporters immunity from betraying sources.

As a result, reporters remain vulnerable to selective prosecutorial harassment. In the past, the press has taken big risks to pursue the public interest and has resisted prosecutors' demands to betray sources. Some prosecutors and judges have trod lightly, balancing the First Amendment against other public imperatives, though others disdain the idea of journalistic privilege, and some reporters have indeed served time.

This case is particularly outrageous because a partisan prosecutor is training his guns on the wrong culprits, because the whole affair smells of politics, and because the press as a whole has been far too intimidated instead of standing with the Times and turning a bright spotlight on Fitzgerald and Novak.

Robert Kuttner is co-editor of The American Prospect. His column appears regularly in the Globe.

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