Reporters do not expect to be above the law. But they should be accorded some protection so that they can perform their public service in ensuring the free flow of information and exposing fraud, dishonesty and improper conduct without being exposed to an unanticipated jail sentence. A free society depends on access to information and on a free and robust press willing to dig out the truth and spread it around. This requires some ability to deal from time to time with sources who, for one reason or another, require the capacity to speak freely but anonymously.I agree, although sometimes I get the feeling the first sentence would be better written as "Reporters should not expect to be above the law."
Of course, none of this goes to the question of what to do when a newspaper publishes classified information or information that may be harmful to America's national security. As Olson notes:
The Senate Judiciary Committee will soon take up a bill entitled the Free Flow of Information Act of 2006, sponsored by a bipartisan group of legislators and modeled in large part on the Justice Department guidelines. It does not provide an absolute privilege for confidential sources, but it does require, among other things, that a party seeking information from a journalist be able to demonstrate that the need for that information is real and that it is not available from other sources. Matters involving classified information and national security are treated differently. The current controversy over publications relative to the administration's efforts to deter terrorists does not, therefore, provide any basis for delaying or rejecting this needed legislation.To me, the Times' publication of its "expose" of the SWIFT program is more a matter of horrendously bad judgment than it is a matter of whether or not such publication is lawful.
Having the right to do something doesn't mean you're right to do it. Case in point: I believe Fred Phelps and his single-celled Westboro Baptist Church followers have the right to protest military funerals and carry signs that say "God hates fags" (their God is a hateful God), but I think they're wrong for doing so and quite frankly wouldn't mind if some soldiers or Marines casually walked away from a funeral, sauntered over to the WBCers and opened up a huge can of whupass.
Similarly, whether or not the NY Times et. al. had the right to publish their expose of the SWIFT program isn't as important to me as whether or not they were right to do so. And in my opinion, they were about as right as Phelps and his moronic followers. They "exposed" what by their own reporting appears to be a fully legal program that took great pains to respect the privacy of innocent American civilians, that was secret for a reason, and that actually seemed to work. Watergate it ain't.
Nice job saving the Republic, fellas.
Post script: Sullivan says this op-ed shows that Olson "hasn't quite surrendered to the notion of an untrammeled executive in a constitutional democracy." Fine, but why no mention of the fact that this whole notion of subpoenaeing journalists started with an investigation of the Bush administration, not an investigation by the Bush administration. And Bush, despite probably wishing he has, hasn't jailed any reporters - the only one to do that is Patrick Fitzgerald, the Special Prosecutor established to look into possible wrongdoing by members of the Administration in l'affair Plame. Seems like sort of a cheap shot by Sullivan, no?