Taking the Fifth

When journalists threaten our right to remain silent.

Matt Welch from the March 2005 issue

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If Judith Miller and Matthew Cooper go to jail, Rivkin and Sanford wrote, "We will have ended up with the precise situation the press feared when it fought against the...bill 20 years ago—reporters, not enemies of the CIA, facing prison—and yet another testament to the mess that happens when Congress tries to criminalize certain kinds of speech."

The distinction is lost on the Chronicle's Bronstein. Grand jury secrecy is one of the few protections offered to witnesses called to testify; in the words of the Cato paper, it "protects the reputation of the people who fall under suspicion but whom the grand jury ultimately declines to indict because of insufficient evidence." Yet Bronstein had the gall to compare his publishing of Bonds' testimony with The New York Times' 1971 publication of the Pentagon Papers. "We don't believe that it's our responsibility to enforce federal secrecy provisions surrounding grand jury proceedings," he huffed.

Newspapers, at least in my book, should feel free to print most anything they can get away with, especially when it comes to the government's business. But they should do so bearing in mind the unintended consequences of empowering runaway prosecutors at the expense of compelled witnesses, of emphasizing the First Amendment at the expense of the Fifth, and of encouraging the federalization of crime at the expense of individual liberty. Then again, maybe that's precisely what people like Bronstein intend.�

"This case might well have run its course without the potential policy changes," he wrote, "had The Chronicle not published the testimony it did."�