The point you are making is a good one, especially vis-a-vis discussions on what any possible shield law(s) might address.

But at the same time, you should get the reason most people instinctively chafe at a prosecutor wanting information about something you haven't broadcast or published, but is just in your head! How do you separate something someone told you "for work" and something someone told you "not for work."? It's not really even that much about the press....it's that Kafka thing about prosecutors...everyone naturally wants as much freedom and privacy as possible. It's why we all reacted negatively to Ken Starr subpoeaning Monica's book purchase records, or taking the entire contents of her computer.

Fitzgerald addressed this well in his press conference, I thought: in his very impassioned explanation of why he needed the reporter's input, how he took it very seriously, and that he does not think it should be a common practice to subpoena the work of reporters. It's a very sticky problem because prosecutors have an awesome terrible power in this country; if you don't have the funds to have a good lawyer to make deals with them, they truly can just rifle through your whole life and look for all kinds of other things on the basis of 'need to know.'

A reporter is not just protecting a source. She is protecting the fact that "this source told me X." Unless she knows exactly what the source told the prosecutor, she would have no idea what she could or could not say without violating her confidentiality agreement with the source. And there's no good way around that problem, because the prosecutor can't tell her what the source said (both because he would be revealing grand jury testimony and because he wants to get the reporter's independent recollection of the conversation).
In this particular case, Judith Miller promised Scooter Libby that she would not tell anyone that he told her about Wilson's wife. Unless she knows that Libby told Fitzgerald that he told Miller about Wilson's wife, she's in a pickle when she gets that subpoena. And don't forget that Libby did *not* admit this to Fitzgerald. He never revealed the essential secret being protected here. Like it or not (and like her or not), she was eventually forced to reveal something she had promised not to reveal.

SFCWallace--

Please explain that talking point.  I've heard it many times, but I have no idea what the heck you're talking about.

Thanks, and Keep the Faith.

...But on July 14, 2003, our lives were irrevocably changed. That was the day columnist Robert Novak identified Valerie as an operative, divulging a secret that had been known only to me, her parents and her brother.

Valerie told me later that it was like being hit in the stomach. Twenty years of service had gone down the drain. She immediately started jotting down a checklist of things she needed to do to limit the damage to people she knew and to projects she was working on. She wondered how her friends would feel when they learned that what they thought they knew about her was a lie....

By Joseph C. Wilson IV in the Los Angeles Times, October 29, 2005

BobN - Why would she be protecting that "this source told me this."  Didn't he tell it to her with the intent that it be published and that she could rely on its truth because he was saying it?  Once Libby says that he spoke to her, why would the contents of that exchange be protected?

Why can't the WaPo editors understand they are not making a logical or defensible case":

"no indication that Mr. Libby or any other official deliberately exposed Ms. Plame to punish her husband, former ambassador Joseph C. Wilson IV. Rather, Mr. Libby and other officials, including Karl Rove, the White House deputy chief of staff, apparently were seeking to combat the sensational allegations of a critic."

WaPo should ask themselves why would the Administration try to dispute Wilson's statements by bringing in his wife at all?
Surely WaPo knows enough about federal organizations and in fact almost any organization to understand that a spouse does not have authority to send their spouse on a trip.
Surely WaPo does not believe that the political action to counter Wilson justifies publicly reveal a CIA officer.

washerdreyer: A better way to understand this is to ask, "What promise has the reporter made to the source?" The reporter has promised the source that she will not reveal the fact that he told her X. She can report X, attributed to an anonymous source (let's hope more than one). She could, depending on the circumstances, even reveal that she has talked to the source. But what she cannot do is break that promise, because that would expose the source to whatever harm the source feared in insisting on anonymity. (The fact that many of us would wish all that harm and more on Mr. Libby does not change the way a reporter would have to look at the question.)
To your last sentence, remember that Miller did not know for a fact that Libby told Fitzgerald anything about their conversation, let alone that he had discused Wilson's wife with her. 
Imagine it's not Libby. Imagine it's Daniel Ellsberg, and a prosecutor is trying to find out who leaked the Pentagon Papers. Even if Ellsberg admitted to the prosecutor that he spoke to the reporter, and even if the reporter knew this, she still shouldn't tell the prosecutor that Ellsberg gave her the papers, should she? (Note: The imperfections of the Libby-Ellsberg analogy are conceded.)

think Bob Woodward).

I am thinking Bob Woodward and wondering if he wrote the editorial.  Isn't he writing a book about Bush's second term?

Sorry, replied in the wrong spot.

Jay: The vast majority of all reporting is done on the record. And, as I suspect you'll agree, a lot of what's done off the record really doesn't need to be. But off-the-record is going to be SOP for White House officials outside the press office, and that's been true for a long time. (It's one reason why reporters should pay less attention to what White House officials say.)
I don't know the details of Russert's case, but he clearly wasn't interviewing Libby in that conversation, offered no pledge of confidentiality to Libby, and was under no obligation to protect anything *from that conversation.*
That said, when Russert gets a subpoena he really doesn't know exactly what Fitzgerald is looking for and what he might be asked. Maybe Russert has interviewed Libby on background on other occasions. These are very tough situations for a reporter, there are no clear rules, and we need to cut them some slack as they struggle to deal with each case. (Note: That does not mean we need to cut anybody slack for inexcusably bad reporting.)

SFWallace, you either can't read or you don't know what an operative is.

 "Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction."

 And no, it was not public knowledge that Plame worked at the CIA. In point of fact, no one outside her family knew. Give up the B.S, man. The only way someone oculd have found out she worked for the CIA was to tail her to work, and if someone had reason to tail her to work her cover was blown anyway.

WaPo:

hen I first met Joe and Valerie, I quickly got to the classic Washington question: What do you do? Joe explained that he was a former ambassador to a number of African countries, who had worked in both the Bush I and Clinton administrations.

Valerie's answer was more than a little vague. She quickly said she was a consultant. As a fourth-generation Washingtonian, I have learned that when someone says, "I'm a consultant," that is a cue to back off, as it usually means the person is unemployed or "between engagements."

So, from 1998 to July 14, 2003, we were simply neighbors sharing cookouts. ...

That surprise was nothing compared with the shock I experienced 10 days later. On that sunny Monday morning, I was sitting outside at the table on my deck, having breakfast and reading The Washington Post. When I turned to the op-ed pages, I noticed a column by Novak entitled "Mission to Niger," addressing Joe's op-ed the previous week. I was stunned to read that "Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction," citing two administration officials as sources.

More WaPo:

Friends and neighbors knew Valerie Wilson as a consultant who traveled frequently overseas. They describe her as charming, bright and discreet. "She did not talk politics," said Victoria Tillotson, 58, who has often socialized with the Wilsons.

"I thought she was a risk assessment person for some international investment company," said Ralph Wittenberg, a psychiatrist who chairs the nonprofit Family Mental Health Foundation, where Valerie Wilson is a board member. In recent years, he said, Valerie Wilson has been an "unstinting" volunteer, running peer support groups for women who suffered from postpartum depression, as she had.

"I would never have guessed in a million years" that she was a spy, Wittenberg said.

Another acquaintance active in raising awareness of postpartum depression, Jane Honikman, briefly contemplated the image of Valerie Wilson slinging an AK-47 assault rifle. "I can't imagine her holding anything other than a spoon, or a baby," she said.

 NY Times:

On June 1, after a year's unpaid leave, Ms. Wilson, now known to the country by her maiden name, Valerie Plame, returned to a new job at the Central Intelligence Agency, determined to get her career back on track, her husband said. Neither the agency nor Mr. Wilson would describe her position, except to make what might seem an obvious point: she will no longer be working under cover, as she did successfully for almost 20 years.

"Before this whole affair, no one would ever have thought of her as an undercover agent," said David Tillotson, a next-door neighbor for seven years who got to know the Wilsons well over back-fence chats, shared dinners and play dates for their grandchildren with the Wilsons' children, Trevor and Samantha.

"She wasn't mysterious," Mr. Tillotson said. "She was sort of a working soccer mom."

He recalled his incredulity on July 14, 2003, when his wife, Victoria, spotted in The Washington Post, in a syndicated column by Robert Novak, a line identifying their neighbor by her maiden name and calling her an "agency operative." Ms. Tillotson kept calling out: "This can't be! This can't be!"

The Wilsons' neighbor on the other side, Christopher Wolf, was similarly aghast. As he sat on his deck staring at the Novak column, Mr. Wilson came out his back door.

"I said: 'This is amazing! I had no idea,"' Mr. Wolf recalled. "He sort of motioned to me to keep my voice down."

 

 What I'm wondering is why journalists haven't taken more flak. If someone indulges a plan to commit murder to a journalist, can the journalist plead that it was off the record? No, and neither should the journalist be able to with any other crime. There's nothing particularly subtle or difficult about that line. If this makes Washington officials more relunctant to approach reporters for the purposes of outing CIA agents, so much the better.

SFWallace, you either can't read or you don't know what an operative is.
Actually I can read quite well thank you, I do have trouble typing sometimes, when I go too fast, I'll drop a letter or add afew. Anyway, and "operative" is anyone who works in "Operations" (that's a division of the agency like logistics or security) which is why there is a distinction made about "Covert" operatives, and only a crime to knowingly out a "covert" operative. The first referance anywhere in print to her "covert" staus was made by Wilson himself. Unless I missed it in the Novak piece (which I really doubt or you would have linked to it).

thanks. And thanks very much for your initial reply, because I have clearer understanding of what Libby was doing by getting this story out to reporters he believed would not cite him as the source, and then testify that they were the source. Speaking very narrowly, it seems to me that neither Miller, nor Cooper, nor Russert could object to answering the question "Did you tell Libby about Valerie Wilson's CIA status?"

I have some chores to attend to at the moment, but would like to continue this discussion. I've been wishing that someone who clearly understood the issues from the journalist's side would post here, and I really appreciate your doing so.  Could I ask a favor? I think I wouldn't be alone in appreciating your starting a discussion thread of your own on this topic.  While it's on topic here, thread management is going to get out of hand. 

SFC Wallace and bjm/Boris should carefully read the Indictment of LIBBY which they can find on the internet and they will find that Patrick Fitzgerald knows a whole lot more about this case than they do and they should  also keep in mind that Patrick Fitzgerald knows a whole lot more about this case than was expressed in this particular indictment, the important aspects of which will no doubt come to light in weeks and perhaps months to come.

Didn't Novak call her an "operative"in the article in question? I think Josh showed pretty clearly a while back at talkingpointsmemo.com trhat when Novak had written about "operatives" in previous articles he was referring to covert agents.

Sorry, I guess it's your logic that's atrocious. It is a crime to reveal the identity of a covert operative as an operative. No one gives a damn if the word "covert" is used or not. The whole point of being covert is that no one knows your an operative at all. This should be blindingly obvious, but if you're sufficiently invested in never admitting an administration you support committed a crime, I guess you can twist your brain until being covert has some completely different purpose than hiding that you're an operative for the CIA.

When Novak wrote his column, it became impossible for Valerie Plame to do her job and all her contacts' lives were put at risk. That's the crime. That's why the White House and not Wilson are under investigation.

Let me add, while I'm on the subject that Russert has taken a log of crap in the blogosphere over how he has handled this--his unwillingness to speak out in his various venues in particular.

I've never had a problem with Russert refusing to tell what he knew - only with his continuing to cover the story while refusing to speak out.  He should have recused himself from covering the story.

The market for access has been spun off from the market for information.