[Reposted from my Daily Kos diary, which I've now used twice, where I summarized my views on all this. This may be a bit repetitive, but I ought to post it here too, I think.]

I've blogged a fair bit about the contempt problems that Cooper and Miller face in the Plame investigation (here, here, and here), and today I see both Kos and Susan G talking about it (with Susan touching the same story I did, but with a different angle). It seems some of us progressives are caught between wanting a fully free press, and realizing that tools like Judy Miller are abusing that notion to protect corruption at the highest levels of government.

What the press is seeking now is an unqualified privilege, one that says a reporter never has to reveal a source under oath for any reason, without any way to overturn that decision or compel his (or her) testimony. The idea is that just as society needs to be sure we can be frank with our doctors, lawyers, and ministers, society needs a free press where whistle-blowers can be honest with reporters without fear of retaliation. Most of us can agree that's true, but what the reporters seek is far more damaging to society. (more after the jump)

Reporters already enjoy a qualified privilege not to testify in many states, and even the US Justice Department guidelines say not to subpoena reporters or threaten them with contempt unless they are the only way to obtain evidence about a major crime. The problem reporters have with the "qualified" privilege is that it's subject to prosecutorial and judicial oversight, as in the Miller case. A prosecutor determined he must have Miller's testimony, and a judge, a Federal appellate court, and the US Supreme Court all upheld that finding. It did not change Miller's mind about her obligation, and so she sits in jail "for a principle," and we're told that the solution is an unqualified privilege for reporters.

The problem is that reporters want only the unqualified privilege, not the responsibility that goes along with it. Reporters want the right to keep their sources secret as long as they want to keep them secret, but also still demand the right to burn secret sources who have lied to them. They want to be able to tell their editors and publishers who their sources are (and indeed, must do so as part of the sanity-checking process), and maybe even other reporters who work on the story with them, but not to have to tell anyone they decide not to tell. Some reporters don't even want to have to tell their editors, and as we saw with Miller and Chalabi in the past few years, that may not be a great idea anyway.

No other unqualified confidentiality privilege works this way.

Doctors, lawyers, and ministers who share your privileged information without your permission lose their licenses or accreditation, and in some jurisdictions, may have committed a criminal act. Reporters don't want to be legally required to reveal sources - they want the privilege to decide that for themselves, with absolutely no judicial oversight.

If Judy Miller decides that no one is entitled to know her source, then she thinks nothing in the US Government should be able to compel her to reveal it. However, if she decides, using her own reportorial judgment, that the source no longer deserves her protection, then she also wants the right to identify him, or arrange for others to identify him. It's all of the benefits with none of the responsibilities.

A few journalism observers have suggested that reporters should not have an unqualified privilege, because without it, they'll be far more careful about promising confidentiality to sources that don't deserve it. Atrios's recent series on the "Ridiculous Anonymous Source of the Day" points out how casually the press promises secrecy to people who are simply parroting their group's standard spin.

But no one is suggesting that if reporters get an unqualified privilege, they should have to back it up with personal punishment if they choose to break that confidentiality. Such a law would, in theory, apply to everyone who claims the "journalism" banner - if a blogger refuses to reveal a source to protect him, then if that same blogger told his friends, he'd face legal repercussions and the veil of confidentiality would be pierced.

I think that we, especially as progressives, should be extremely skeptical of any group that demands privileges without responsibilities, especially when they demand the right to disobey laws that the rest of us must follow, giving in return only the vague promise that they'll use the power for good instead of evil. We can already see that the press isn't using this power solely for good, and that's one reason that it's wise to have judicial oversight of it.

These reporters are asking for absolute, unquestionable control over information up to and including sensitive national security matters - if they feel like revealing it, they will; if they don't, you can't make them. If they're not going to accept the oversight of the courts in even the most extreme cases (like this one), then they have to accept the same kind of punishment that affects members of other privileged professions if they ever break confidentiality.

Otherwise, reporters truly would be above the law. That can't be good for society.