02/28/05 — Reporting: Ruling could foster government secrecy

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Reporting: Ruling could foster government secrecy

A ruling by a federal court last week calls to mind the notorious libel trial of Emile Zola, a case that nearly brought down the Republic of France.

Zola was hauled into court in 1898 on libel charges for publishing evidence that the French Army had deliberately prosecuted an innocent member of its General Staff. The victim was Capt. Alfred Dreyfus, a Jew who made a handy scapegoat when it was learned that someone on the General Staff had sold secrets to Germany.

Dreyfus drew a life sentence on Devil’s Island, but his family never gave up hope that he would be exonerated. After several years, family members appealed to Zola, who was a well known novelist and former journalist.

Zola did not want to get involved. But when the evidence convinced him that Dreyfus was innocent and that the real traitor remained free, Zola published a lengthy treatise titled “J’accuse!” or “I accuse!” in which he detailed a scandalous case of false prosecution.

The Army accused Zola of libel and he was convicted, largely because the rules of procedure in French courts allowed the prosecution to keep hidden from the defense, and the jury, some of the documents that were mentioned as “evidence.” The secrecy was imposed on the pretense of protecting matters related to foreign policy and protecting the Army itself.

Zola’s lawyer protested vigorously. In doing so, he represented a client much larger than one man. He fought not only for Zola, but for French democracy as well.

The General Staff won the round. Zola was convicted, and he left France to avoid prison.

In a few months, though, he was pardoned — as, eventually, was Capt. Dreyfus. Had their convictions stood, and if prosecutions on secret evidence become acceptable in France, its republican government would have failed.

Last week, a three-judge panel of the U.S. Court of Appeals for Washington, D.C., ruled that reporters have no right to keep their promises when they pledge not to reveal the names of people who supply them with information. The ruling involved the politically charged case in which someone revealed that a government official’s wife was a CIA agent after the official made statements unfavorable to the Bush administration.

Two reporters were subpoenaed to identify their sources. They are Matthew Cooper of Time magazine and Judith Miller of the New York Times.

If the ruling is upheld by the full Court of Appeals and the Supreme Court, two of the consequences will be these:

1. Cooper and Ms. Miller face jail time.

2. People with important information will be discouraged from coming forward, and it will be easier for the government to hide information that might be embarrassing — as a court in France strove to protect the Army General Staff from embarrassment.

Our system of democracy would be diminished.

Published in Editorials on February 28, 2005 10:26 AM