Reporters Trapped by a Promise not to reveal sources

Reporters Trapped by a Promise
Unnamed Sources At Issue in CIA Leak
By Howard Kurtz
Washington Post Staff Writer
Sunday, October 5, 2003; Page A01

There are at least six people in Washington who know the answer to the city's most politically charged mystery in years. And they're not talking.

That's because they're journalists.

Whether they should maintain their silence -- and whether they might be legally compelled to break it -- lies at the heart of a burgeoning debate about media ethics and the whispered transactions with government officials that shape the daily flow of news and opinion.

Columnist Robert Novak, who sparked a criminal investigation into which "two senior administration officials" told him that the wife of an outspoken White House critic was a CIA operative, isn't the only person who knows the identity of the leakers. Reporters for NBC, Time and Newsday, among others, had similar conversations with administration officials.

Among the questions swirling around the controversy is whether Justice Department investigators might seek to subpoena the journalists after former diplomat Joseph Wilson, who is outraged about the outing of his wife, provides their names, as he has promised to do.

"Our policy has always been to protect our sources," said Newsday Editor Howard Schneider. "People are not going to talk to us if we don't do that. The greater good here is to make sure that confidential sources who have important information can come to us and be protected."

NBC's Andrea Mitchell, who reported after the Novak column was published in July that the administration was trying to intimidate Wilson, said she could not reveal the officials she spoke with because such agreements are "fundamental to what we do as journalists." She said news organizations would have to evaluate the situation on a case-by-case basis "if someone's life was in danger, or a military operation was involved, or evidence of a crime was needed."

Novak said last week that if he revealed his sources, "I would leave journalism."

But not every source is a Deep Throat, the shadowy figure during the Nixon administration who passed Watergate secrets to The Washington Post's Bob Woodward in a parking garage -- and whose identity is still the subject of a capital guessing game.

Nicholas Lemann, dean of Columbia University's Graduate School of Journalism, said he has never betrayed a source and that it is a question of "personal honor" for journalists. But he said the "underbelly of leaking" is not pretty.

"Ninety-five percent of the time, people are basically dropping a dime on other people, dissing other people, leaking from base motives," Lemann said. "Let's not pretend all leaks consist of genuine whistle-blowers. Usually it's Campaign A telling you something sleazy about Campaign B that their candidate is afraid to say in public. But you have to honor the principle for the sake of the minority of cases that are really in the public interest."

Some members of the public, if a torrent of e-mails is any indication, suggest Novak and the other journalists have a duty to come forward. If it is a federal crime for officials to intentionally make public the name of a covert operative, these critics ask, why do reporters who serve as a conduit for such information get a pass?

As journalists see it, they have protected status because they are the public's watchdogs, with special freedoms enshrined under the First Amendment. Reporters also say they could not dig out vital information about government and business if sources who might lose their jobs, or face political retribution, had to be quoted by name.

But critics say journalists sometimes abuse their power by allowing prosecutors -- such as Kenneth Starr during the Clinton impeachment, or authorities in the sexual assault case against Kobe Bryant -- to leak damaging details without having to go on the record.

Inevitably, the special status of journalists clashes with other legal rights during an investigation, such as a defendant's right to a fair trial or to have his grand jury proceedings remain secret.

Victoria Toensing, who as an aide to the late senator Barry Goldwater helped write the 1982 law banning the disclosure of covert operatives' names, said journalists were exempted because they, unlike federal officials, don't have clearances for classified information. The only exception is if a journalist engages in a "pattern" of naming operatives, inspired in part by CIA agent-turned-author Philip Agee, who repeatedly tried to expose agency personnel around the world.

Asked about the possibility of subpoenaing journalists in this case, Toensing, a former federal prosecutor, said: "I don't think it's ever a good idea. You're just going to make a hero out of the reporters, who can raise their book prices. It's like calling a lawyer to talk about attorney-client privileged information. You're not going to get it."

Lucy Dalglish, executive director of the Reporters' Committee for Freedom of the Press, said journalists -- like doctors, lawyers, therapists and the clergy -- deserve to be shielded from having to testify. But if Novak were dragged into court, she said, "you think he wouldn't gladly face contempt? This is the kind of thing that young journalists dream of. They love to go to jail."

Actually, it may not be as much fun as outsiders believe. Timothy Phelps, one of two Newsday reporters cited last week in a White House counsel's order not to destroy documents or phone records in the Wilson case, went through such an ordeal in 1991. When he and National Public Radio's Nina Totenberg broke the story of Anita Hill's sexual harassment allegations against Supreme Court nominee Clarence Thomas, the reporters became the subject of a Senate leak investigation.

Phelps was hit with a subpoena for his home and office phone records, which was blocked when a Senate committee refused to enforce it. And his government sources came under investigative scrutiny.

"It was very difficult to get any reporting done when they're under this kind of order to produce any records relating to any contact with me," Phelps said. "And that is also the case today. I'm not getting my phone calls returned."

Attorney General John Ashcroft must approve any subpoena of a journalist under his department's restrictive guidelines, which is why it happens so rarely.

"The essential guiding principle is that subpoenaing a journalist should be the last resort," said Justice Department spokesman Mark Corallo. "We should do everything we can to avoid the chilling effect on the press."

The guidelines say: "All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media. . . . In criminal cases, there should be reasonable grounds to believe, based on information obtained from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation."

Law enforcement sources familiar with the CIA case say subpoenas have basically been ruled out but reporters may be asked to submit to voluntary interviews. "It would be improper for the FBI not to call and say, 'Are you willing to sit down for an interview?' " said one official who asked not to be identified because of the case's sensitivity. "When the reporter says no, that would probably be the end of it."

Some of the Justice Department's leak investigations, such as a probe of a classified intelligence briefing for Congress that leaked out after the Sept. 11, 2001, attacks, are continuing but have not produced any charges.

Ashcroft did not block a subpoena in 2001 for freelancer Vanessa Leggett, a Texas writer who spent 168 days in jail for refusing to reveal the sources she interviewed in the murder of a Houston socialite. Justice officials did not consider Leggett, who was writing a book about the case, a legitimate journalist. She was freed when the grand jury disbanded.

Also in 2001, the Justice Department approved a subpoena for the home phone records of Associated Press reporter John Solomon, who was digging into an investigation of then-Sen. Robert Torricelli. Last year the FBI seized a package that another AP reporter in the Philippines had mailed to Solomon. The FBI has launched an internal inquiry into whether the interception was proper.

The issue keeps popping up in court. On Tuesday, a U.S. district judge in Washington ruled that a reporter for the military's Stars and Stripes newspaper did not have to disclose the government sources who leaked her information about a Pentagon job application by Linda Tripp, who became famous after taping her conversations with Monica Lewinsky.

In one high-profile case, a reporter fired by the Cincinnati Enquirer did divulge his source for stories about Chiquita Brands that led to a retraction and a $14 million settlement. The reporter, Michael Gallagher, cooperated with prosecutors and named former Chiquita lawyer George Ventura as his informant. A federal judge this year threw out a Ventura lawsuit charging that the paper had broken its promise not to identify him.

Protecting sources is important, said Joe Conason, a columnist for Salon.com, but sometimes "you reach a breaking point with it."

"The knee-jerk reaction -- 'Oh no, these are sources and we can't talk about it' -- is a little too easy," Conason said. He said most of the journalists who received the CIA information "had this prod from the White House to go after Joe Wilson, and they didn't report that the White House was out to get a critic. Whenever Bill Clinton was seen to be doing something like that, it was always big news."

NBC's Mitchell believes no-name journalism has gotten out of hand. "Anonymity is conferred much too frequently in Washington," she said. "We really should strive to name sources much more often," or to offer details that would "give readers and viewers as much information as possible about what their bias could be or what ax they could be grinding."

The murkiness of the subject emerged at a White House briefing last week. Reporters wanted to know whether administration officials had not only leaked the identity of Wilson's wife but also called attention to Novak's July 14 column in subsequent conversations with reporters. Press secretary Scott McClellan accused them of "moving the goal posts," saying: "The subject of this investigation is whether someone leaked classified information."

All this puts journalists in the uncomfortable position of peppering administration officials with questions some of their colleagues, now in the media spotlight, could answer.

"It's a tough question for journalists," said Columbia's Lemann. "I see why not revealing a source is very powerfully in your personal professional interest. But why is it also in the public interest?"