And by “consensus” I mean me, two guys I read regularly, and one other guy whose stuff I enjoy when I remember to look for it.
Andy McCarthy says good luck trying to prosecute a newspaper when there’s a constitutional “moment” to be had for Justice Kennedy in shooting it down. Besides — it’ll only make things worse:
Imagine the media as the winner of a long, bitterly contentious struggle that ends in the Supreme Court. They will have succeeded in turning themselves into martyred heroes. We may, quite justifiably, view the Times and its allies in this cause as aiders and abettors of our wartime enemy. But the history — which they, primarily, will write — will portray them as Defenders of the Constitution.
More consequentially, were the press to win such a battle, it would only encourage more leaking. Now their recklessness (or worse) would bear a judicial imprimatur. Think of it as a Pulitzer Prize … but one backed by the prestige of the Supreme Court rather than the dwindling influence of journalism’s majordomos.
Patterico concurs, and has the good sense to quote me in doing so. And he says it’s not just at the appellate level where a prosecution would run into trouble:
If prosecutors decide to prosecute, it’s ultimately up to a jury of 12 citizens, who must find the defendant(s) guilty beyond a reasonable doubt.
And there’s the rub. Because I strongly doubt that we could find a jury of 12 people to convict.
These issues are so politically polarized that it seems you can’t get people to analyze them with any objectivity whatsoever. Ardent blog readers and commenters know, perhaps more than most, how unreasonable some people can be when you challenge their political beliefs. Reason goes out the window. They’ll deny that the sky is blue if helps them make a political point.
There are some people who are so disenchanted with Bush and his administration that they’d support the publication of almost any article that attacked Bush — regardless of the damage the article might do to the country.
Entirely right, of course. If you think the holdout juror in the Moussaoui death-penalty phase was motivated to nullify, put a liberal on the jury of the Times case and see what you get. You’d sooner see Pat Robertson renounce the cross than a lefty vote to punish the adversary media for anti-Bush activity, however criminal it might in fact be.
So what to do? Jed Babbin works up a lather, then solves the puzzle:
The Attorney General should, forthwith, rescind the limitations on subpoenaing reporters’ testimony in the U.S. Attorneys’ Manual and order the U.S. attorneys to use grand juries to call Risen, Lichtblau, Priest and the others to testify under oath. If they refuse to reveal their sources, they should be held in contempt and jailed until they do. When the leakers are discovered, they should be prosecuted to the fullest extent of the law, regardless of who they are: Senators, staffers, CIA employees and all the rest. Expose them, shame them, and put them in jail where they belong. The duty is yours, General Gonzales. Why aren’t you doing it this very day?
That’s McCarthy’s solution too. Prosecute the leakers, not the Times. Locking up treacherous reporters might give you the warm fuzzies but it doesn’t cork the spigot. Immunizing reporters so that they’re forced to testify at leak prosecutions does, because it leaves them no recourse but to give up their sources. Worst case scenario is they refuse and go to jail for contempt, so that you end up with pretty much the same deterrent effect as if you’d prosecuted them directly. You end up with some martyrdom effect too, of course, but less than if you’d confronted them directly on a First Amendment point. Indeed, as we’re already learning from Howard Kurtz and Dean Baquet, to criticize the two papers for publishing this story is in some quarters to oppose the principle of free speech itself.
Something else. Jim Treacher and I have been e-mailing trying to figure out precisely why it is the “Al Qaeda already knew” defense bugs the hell out of us so much. Patterico helps out here. Aside from the argument being factually wrong, though, I think it grates simply because it shows what straws the left is willing to grab at just to be on the Times’s side in this. They refuse, categorically, to line up with Bush, even if it means half-heartedly defending the exposure of a counterterror program that’s legal and effective. Which I guess brings us back full circle to Patterico’s point about the jury.
By the way, Tony Snow says the White House won’t revoke the Times’s press credentials. Either they’ve got something bigger planned or else they’ve totally pussed out.