Not quite three months ago, in a farewell note marking his retirement from PBS’s weekly news commentary show, Now, Bill Moyers told his devoted viewers: “The quality of journalism and the quality of democracy go hand in hand.” How true.
One of the absolutist rules of journalism is this: Never burn a source. You would never stoop to that not only because you’ve given your word of honor to guard the confidentiality of your sources — much in the manner, say, of doctors and lawyers who are enjoined by their professional oaths against revealing information, respectively, about patients and clients — but also because, practically, for a reporter sources are the lifeblood of news gathering.
From Watergate’s Deep Throat to the latest corporate whistleblower, the benefits flowing to the public from this pact of confidentiality are obvious, for leaks by unnamed sources often do provide us, engaged citizens, with invaluable information that we need to know about what those in power are up to when no one is watching.
Consider this: If Carl Bernstein and Bob Woodward of the Washington Post were threatened by a subpoena compelling them to disclose their sources — that the two reporters would predictably have refused to abide by — they would have been found in contempt. Since reporters can’t do much work in a jail cell, Watergate would have been lost to history.
No one is saying that journalists should be above the law — just that they should be above a subpoena that forces them to betray their oath of confidentiality to sources. The First Amendment is clear on the right of the press to gather information and publish it. And law enforcement agencies have no right to effectively enlist journalists in their criminal investigations every time an incompetent prosecutor can’t find enough evidence to prosecute a case.
Journalistic confidentiality is sacrosanct and failure to protect it by society is the first step to totalitarianism.
So enter the case last week of Judith Miller of the New York Times and Matthew Cooper of Time magazine, who may be jailed if they continue to refuse to answer questions (read, reveal sources) before a grand jury about their confidential conversations with government sources regarding the leak of a covert CIA operative, Valerie Plame, in the summer of 2003. Should they continue to do so, they could face 18 months in jail.
For those few readers who are not familiar with the Plame case, here’s a recap: In his 2003 State of the Union message, President Bush stated categorically that Saddam Hussein had tried to buy yellow cake uranium from Niger, which he later used as yet another excuse to go to war against Iraq.
Joseph C. Wilson, a former ambassador to Niger who was familiar with Africa, had been sent by the CIA to the African nation earlier in 2002 to look into the matter. He found no evidence supporting the claim and notified the administration upon his return that year. When Bush still decided to go ahead and make the false assertion about Saddam’s putative efforts in Niger in his State of the Union message in 2003, Wilson was outraged and went public with the truth, which incurred the wrath of the White House.
And this is where Robert Novak, the conservative Republican commentator, outed Ms. Plame in one of his columns, some say for vindictive reasons.
Ironically, neither Miller nor Cooper, who admittedly are known to have had confidential conversations with government sources regarding the leak about Plame’s identity, has written a story about the case.
Novak, however, who has refused to say if he had faced the rigors of a grand jury inquiry about the matter, is suspected of having already done so — and rolled over, revealing his sources.
Look, Judith Miller is not without her detractors among hacks — including this one. She was, after all, the influential New York Times reporter embedded with a US military unit searching for WMD in Iraq, who wrote all those front page “exclusives” about the existence of such weapons there — all false and all, it now turns out, dependent on information provided by the discredited Ahmad Chalabi and other dubious characters he had introduced her to — exclusives that were cited late last year in a Times “editor’s note” acknowledging flaws in the paper’s coverage, and in a stinging column by the ombudsman.
Whether Miller was a lousy reporter, allowing herself to become an advocate with a political axe to grind, is not the issue here. The issue is whether journalists can be jailed for doing their job — which includes the promise of confidentiality.
The irony deepens when you consider this: Miller and cooper are in fact (hold on to your hat) protecting administration officials, clearly the bad guys here, who tried to damage Joseph C. Wilson, a critic of President Bush, by revealing his wife’s identity as a CIA agent.
About that Cooper was clear. “The same law that could force a journalist to betray a confidence about a ‘bad’ leaker could be used to cudgel a reporter into outing a ‘good’ leaker,” he said. “Either way you have to honor your confidences.” And you honor those confidences even at the price of 18 months in the slammer.
The problem with laws protecting journalistic confidentiality is that once a case, which a journalist had investigated and in which he had interviewed sources, becomes criminalized, courts feel empowered to force journalists to talk. In the Miller-Cooper case, the Intelligence Identities Protection Act, which makes it a crime to reveal the names of government officials with access to classified information, i.e. the covert identity of an agent whom the government is “taking affirmative measures to protect,” is invoked. The law applies to a journalist if he or she unmasks that agent’s name with “the intent to disrupt US intelligence efforts.”
But the law could also apply, say, in a murder case as well. Example: When William Farr, of the Los Angeles Times, refused in 1972 to reveal a source of leaked information in the Charles Manson trial — and spent 46 days in jail. Another example: Myron Farber, of the New York Times, spent 40 days in jail for refusing in 1978 to turn over his reporting notes in the trial of a surgeon accused of murder. And yet another: Venessa Legget, a freelance writer, refused in 2001 to disclose research and sources to a federal grand jury investigating a killing, and the price she paid for sticking to her professional guns was 168 days behind bars. And if you’re convinced that going to jail turns you into a journalistic martyr of the Fourth Estate, giving you a ticket to fame and fortune, think again. Doing time is not easy.
Bill Moyers was right: Freedom of the press is a serious matter, directly correlated to the democratic rights of citizens to say what’s on their minds and to know what their public servants are up to. Meanwhile, the case of Miller and Cooper will without a doubt end up in the Supreme Court and, equally without a doubt, those of us who string words together for living and those among us who value the profoundly significant role that journalism plays in a free society, will stay tuned.
