Federal prosecutors and judges are targeting investigative journalists. The bulk of the press corps, mostly stenographers who simply repeat what important people say in public, need not worry. Paparazzi chasing the latest celebrity baby need not be concerned. And ambulance chasers at the latest car crash are not in danger. But if you are a journalist who has developed relationships with sources with a conscience who might be in a position to tell you, off-the-record, of official crimes or misconduct, be very very worried.
This also means that those of us citizens concerned enough to monitor our elected officials need to be worried. Three recent examples illustrate the dangers the next Congress must confront:
In June, ABC, the Associated Press, The Los Angeles Times, The New York Times and The Washington Post paid Wen Ho Lee $750,000 rather than reveal confidential sources. Lee was the nuclear scientist at Los Alamos who was fired from his job in 1999 and held in solitary confinement for nine months after being identified by reporters as the target of a federal spying investigation. He was released in 2000 after pleading guilty to mishandling computer files but he was not charged with espionage.
Lee claimed that the U.S. Energy and Justice departments and the Federal Bureau of Investigation violated the Privacy Act and falsely branded him a spy by leaking information to the press. Lee’s counsel subpoenaed journalists to disclose their confidential sources. The reporters were not accused of libel, or charged with publishing false information. U.S. District Judge Rosemary M. Collyer nonetheless ordered them to reveal their sources or pay fines of $500 a day. They appealed but the Supreme Court would not take the case, so the news operations paid up.
Then in September, two San Francisco Chronicle reporters were sentenced to a maximum 18 months, pending an appeal. Federal prosecutors wanted the reporters to reveal the sources who provided them with secret grand jury testimony about Barry Bonds and other athletes suspected of taking steroids. In October, The Chronicle was held in contempt of court and could face fines of $1,000 a day, more than half a million dollars in total, if the federal appeals court rules against the reporters.
Then, in November, the Supreme Court denied The New York Times appeal of a New York federal appellate court ruling that required the paper to reveal the telephone logs of two reporters who received information from a government source who told them that two Islamic charities, Holy Land Foundation in Texas and Global Relief Foundation in Illinois, were being targeted for investigation. As a result federal prosecutors will be allowed to conduct a fishing expedition through phone records revealing the identities of confidential sources unrelated to the Islamic charities.
Remember the case of former New York Times reporter Judith Miller? The story got a lot of attention in 2005, after Miller was jailed for 85 days for refusing to testify before a grand jury in the C.I.A.-Valerie Plame leak case. 2006 turned out to be much worse. The journalism advocacy group Reporters Without Borders noted in October that the United States now ranks No. 53 in press freedom, having fallen nine places since last year. The U.S. ranked 17th on the first list, published in 2002.
When releasing its latest findings, Reporters Without Borders observed: “Relations between the media and the Bush administration sharply deteriorated after the president used the pretext of ‘national security’ to regard as suspicious any journalist who questioned his war on terrorism. The zeal of federal courts refuses to recognize the media’s right not to reveal its sources, even threatens journalists whose investigations have no connection at all with terrorism.”
Case in point: The Washington Post article earlier this year suggesting that the National Security Agency was engaged in domestic spying sent the Bush administration over the edge, launching “the most extensive and overt campaign against leaks in a generation.” One man’s “leak” is another man’s “deep throat.”
One important lesson of Watergate is that good investigative reporting often requires some reliance upon sources close to power who disclose information only because the reporter agrees not to identify them. That’s how the public learned about the following: the cover up of crimes in the Nixon White House; the illegal sale of arms to Iran to fund an unauthorized war in Nicaragua in the Reagan White House; manufactured evidence to support the 2003 attack on Iraq; and domestic spying by the George W. Bush White House.
Someone close to power unwilling to be named told a reporter where to look. The value to our republic of a reporter keeping the identity of a source confidential is beyond doubt.
The secrets a wife tells her husband, or a client tells his attorney, or a patient tells her doctor, or a confessor tells his priest are protected by law. There have been cases where these privileges have been abused, but they have not been abandoned. The privilege of a reporter keeping secret the identity of a “deep throat” willing to expose government crimes has also been abused, but it remains no less valuable to the public.
According to Newspaper Association of America President and CEO John F. Sturm: “From exposing major safety violations at nuclear plants to rooting out corporate fraud, confidential sources have played a vital role in shining the light of public awareness on the activities of government and the private sector. If reporters are prevented from getting the real story because their access to confidential sources is restricted, citizens do not receive the information to which they are entitled and the public interest isn’t served. The free flow of information is crucial to a well-informed citizenry and is often the only real-time check on government power.”
The privilege of reporter/source confidentiality deserves legislative clarity. The legislatures in 32 states and the District of Columbia have passed such “shield” laws, and 17 other states have recognized a privilege of confidentiality between a reporter and her source as a result of judicial decisions. The state of Wyoming and the federal government have not recognized this privilege with any uniform set of standards.
Now that we have the possibility of a real legislative check on the power of the Executive branch, members of Congress need to enlist the power of investigative journalists to find out what the Bush administration has been up to over the past six years. One sure way to do this is to finally pass the bi-partisan “Free Flow of Information Act” introduced in the outgoing Congress by Reps. Mike Pence (R-IN) and Rick Boucher (D-VA) and Sens. Richard Lugar (R-IN) and Christopher Dodd (D-CT).