Beneath contempt.

Byline: The Register-Guard

No one disputes the government's need to protect the identities of undercover CIA agents. "Outing" the agents could threaten their safety or effectiveness and is prohibited by the 1982 Intelligence Identities Protection Act.

Similarly, 31 states (including Oregon) and the District of Columbia have no trouble understanding the importance of allowing journalists to protect the identities of confidential sources. They have passed "shield" laws enabling such protection. American history is replete with examples of great wrongs that would never have come to light if whistle-blowers had not spoken to reporters who were able to guarantee them confidentiality.

What's almost impossible to understand, in light of that history, is why special prosecutor Patrick Fitzgerald enthusiastically ignores the terrible damage he is doing to one vital form of confidentiality in his zeal to protect another.

Unquestionably, the government ought to investigate whether a public official violated the Intelligence Identities Protection Act by revealing the name of CIA operative Valerie Plame to conservative columnist Robert Novak. But after spending two years and millions of dollars probing the leak, Fitzgerald hasn't produce a single indictment, and his case looks dead in the water.

He has, however, produced contempt citations against reporters Judith Miller of The New York Times and Matthew Cooper of Time magazine for refusing to identify the confidential sources they spoke with while researching the Plame story.

Fitzgerald's journalism jihad has never made sense. He has failed to show how the reporters' testimony is crucial to his case. Neither had broken any laws. Miller never even wrote a story, and Cooper's article appeared after Novak's column named Plame as a CIA agent. Neither Fitzgerald nor Novak have said word one about why Novak is off the hook in the prosecutor's fishing expedition, while Miller and Cooper face up to 18 months in jail.

After exhausting all appeals and failing, as was expected, to secure the intervention of the U.S. Supreme Court, Time Inc. shocked the journalism establishment by throwing in the towel Thursday and agreeing to hand over subpoenaed documents to a federal grand jury. What many journalists saw as a betrayal, Time Editor in Chief Norman Pearlstine said was a legal obligation.

"The court concluded that a citizen's duty to testify before a grand jury takes precedence over the First Amendment," Pearlstine said. "I do not agree with that, but I have to follow the laws like every other citi- zen."

Pearlstine is absolutely right about the law and the fact that journalist are not above it. But he couldn't have picked a worse time to forsake the tradition of principled disobedience that U.S. journalists have long observed when compelled by courts to break their pledges of confidentiality.

A federal appeals court last week affirmed contempt orders against four journalists who refused to disclose their sources for stories about Wen Ho Lee, the nuclear scientist who was an espionage suspect. Lee, who denied he was a spy, is suing the government over what he maintains were erroneous leaks to the press.

More important, Miller and her employer, The New York Times, are standing firm in their resolve to resist Fitzgerald's subpoena, just as The Times did in 1978 when reporter Myron Farber served 40 days in jail on a contempt citation. For Time Inc. to break ranks now weakens the front journalists need to present to Congress in their effort to win passage of a federal reporters' shield law.

Reps. Mike Pence, R-Ind., and Rick Boucher, D-Va., have introduced legislation to limit subpoenas of reporters and to prevent the compelled disclosure of confidential sources. Richard Lugar, R-Ind., introduced the same bill in the Senate. The legislation provides protection for journalists similar to that recognized for priests, psychotherapists and attorneys.

Knowing this legislation deserves a fair hearing in Congress, U.S. District Judge Thomas Hogan should impose the minimum sentence on Miller, with no confinement. Jailing journalists for doing their jobs is an injustice unworthy of our demo- cracy.