NAME THAT SOURCE.(government secrets leak)

On December 16th, the Times, citing anonymous government officials, reported that the National Security Agency has engaged in extensive, warrantless wiretapping of American citizens in a secret program authorized by President Bush in 2002. At a press conference three days later, the President defended the eavesdropping. "We're at war, and we must protect America's secrets," he said, adding that the Times' sources, by disclosing the program, had committed a "shameful act" that had undermined American security. By the end of December, the Justice Department had begun a criminal investigation of possible leaks of classified information to the Times. As part of the inquiry, the leaders of the investigation will almost certainly seek to interview the reporters who wrote the story, James Risen and Eric Lichtblau. The reporters may receive grand-jury subpoenas demanding their cooperation, and may face contempt charges and jail time if they refuse to comply. Thus the N.S.A. leak investigation may join a growing list of cases in which journalists, under threat of legal sanction, are being asked to identify their sources.

In the best known of these cases, Patrick J. Fitzgerald, the special counsel investigating the leak of the name of Valerie Plame Wilson, a former C.I.A. agent, subpoenaed at least six Washington journalists to appear before a grand jury last year; one, Judith Miller, who was then a reporter for the Times, was jailed on contempt charges for eighty-five days before agreeing to testify. Reporters are also being subpoenaed to testify in civil cases. Wen Ho Lee, a nuclear physicist who formerly worked at the Los Alamos National Laboratory, in New Mexico, has sued the government for improperly disclosing his name and other confidential information in the course of an espionage investigation in 1999, and in the past two years the judges in the case have issued contempt findings against Risen and Jeff Gerth, of the Times; Walter Pincus, of the Washington Post; Bob Drogin, of the Los Angeles Times; Pierre Thomas, formerly of CNN and now with ABC News; and H. Josef Hebert, of the Associated Press, all of whom have refused to testify, and ordered them to pay fines of five hundred dollars a day. An appeals court affirmed the judgment against all the reporters except Gerth, who was found to be too peripherally involved to be cited, and the journalists have asked the Supreme Court to intervene. (The fines are stayed pending the appeals.)

Steven J. Hatfill, a former government scientist who was identified in the press as a possible suspect in the anthrax investigation, has filed a similar lawsuit against the government, in connection with leaks in his case, and in December, 2004, his lawyers subpoenaed thirteen news organizations for testimony. The lawyers have since withdrawn the subpoenas, while they interview government officials they suspect could be responsible for the leaks, but the subpoenas are widely expected to be reissued.

In October, Patrick Fitzgerald charged I. Lewis (Scooter) Libby, Vice-President Cheney's chief of staff, with lying to the grand jury about his conversations with reporters, including Miller, Tim Russert, of NBC, and Matthew Cooper, of Time. (Libby immediately resigned.) As Libby's lawyers prepare for his trial, which will probably take place this year, they are expected to ask to see the journalists' notes, and they may subpoena other reporters who covered the investigation. At the trial, Libby's team will try to undermine the journalists' credibility by challenging them on everything from sloppy note-taking to evidence of bias. "This guy is on trial for his freedom, and it's not his job to be worried about the rights of the witnesses against him," a person close to Libby's defense team said. "There are going to be fights over access to the reporters' notes, their prior history and credibility, and their interviews with other people. By the time this trial is over, the press is going to regret that this case was ever brought."

Media lawyers and journalism advocacy groups are alarmed by the increase in demands for reporter testimony. "Thirty-five years or so ago, reporters started getting a lot of subpoenas, and then there was a long lull," Lucy Dalglish, the executive director of the Reporters Committee for Freedom of the Press, told me. "But starting about two years ago we got this sudden pop. There are more grand-jury leak investigations, not just with Fitzgerald but in Rhode Island and other places." (Last year, Jim Taricani, a local television reporter in Providence, served four months under house arrest for failing to reveal a source of a leak in a criminal investigation.) "The ...