Packwood and Privacy

SEN. Bob Packwood, under investigation by the Senate Ethics Committee for charges of sexual harassment, is refusing to comply with a subpoena to review parts of his private diary. The subpoena and Mr. Packwood's response are the talk of Capitol Hill. The case is hot, partly because it may force a precedent for standards of privacy that could wind up in the Supreme Court; and partly because diary material may incriminate members of Congress in areas separate from the focus of the harassment case.

This has not been a good year for Packwood. Questioned prior to the Nov. 3 Senate election in Oregon about sexual harassment, Packwood denied any unseemly conduct, and his staff members conducted a campaign of threats and intimidation to keep the story out of the papers and to malign those making charges.

Three weeks later, when the Washington Post ran a story about 10 former Packwood associates who had been subject to unwanted fondling or kissing, the senator changed his story and apologized. Then 13 more women came forth, and a Senate ethics investigation was launched.

Packwood's behavior has not been exemplary. Having essentially lied to his constituents, conducted a smear campaign, and attempted to block an ethics investigation, this week he went on the Senate floor to say material in his diary could harm colleagues. The implicit demand: Squash the subpoena. This case isn't getting any more ennobling for anyone, and perhaps Packwood should have done what Oregon voters, and we, suggested months ago: step down.

Having said that, we must note that the subpoena could set a dangerous precedent. It is not Packwood but privacy that needs protection here: an individual's right to conduct a conversation with his or her conscience via the word. A diary is not the record of an organization or a business. Nor is it principally a record of public business, as were the Nixon tapes. To tell officials that their private musings and wrestlings are fair game is a chilling message.

Investigators say there is ``no constitutional privacy right'' to personal papers. In a criminal case a diary may be subpoenaed, subject to filtering irrelevant material. Since Packwood has already given up much of the diary, it is late to be shouting ``privacy.'' An independent review may be in order.

Still, private thoughts ought to be protected, not penalized, and not subject to the whims of predatory investigators or tides of popular causes.