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Monday, July 04, 2005

The Journalist's Dilemma: To Reveal a Confidential Source or Face Jail Time

In the federal system as well as in some states, journalists do not have any type of immunity that allows them to refuse to reveal the source of information that was given on the basis of a promise of confidentiality. One can argue both sides of the coin; without a promise of confidentiality, many sources will refuse to speak.

One of the best known confidential sources was Deep Throat whose guidance assisted in unraveling Watergate and eventually caused the resignation of President Nixon. Recently because the source himself revealed that he was Deep Throat, it is now known that the source was a high ranking person within the FBI, actually the 2nd in command. The arguments over whether he should have given Woodward and Bernstein the information he did will undoubtedly go on for many years to come as multiple books are written about this.

More recently two reporters were cited for contempt of court for refusing to reveal the source of information that led to the disclosure of a CIA operative. They will learn this week whether or not they will go to jail and if so to which faciity.

The article that follow suggests that there is more pressure today upon reporters to name sources. How does one balance freedom of the press and the press's need to promise confidentiality against the 6th Amendment's Confrontation Clause and in some instances the ability of Government to prosecute a case?

July 4, 2005
Journalists Say Threat of Subpoena Intensifies
In 1991, when Timothy Phelps, a reporter for Newsday, and Nina Totenberg, a reporter for National Public Radio, broke the news that Anita Hill had accused Clarence Thomas, then a Supreme Court nominee, of sexual harassment, a special Senate counsel tried to subpoena the reporters' telephone records to unmask their confidential source.

The accusations prompted a second round of highly contentious confirmation hearings, but Senate leaders ultimately refused to give the special counsel permission to pursue the records, and eventually the matter was dropped.

Mr. Phelps, who is now Newsday's bureau chief in Washington, recalled his case last week after two courts, including the Supreme Court, ruled in two similar cases against journalists.

"We seemed to have pretty solid support for the stand we took, from the journalistic community, the legal community, the human rights community, the public," he said. "And I don't sense as much of that today, even in the journalistic community. The legal atmosphere, the corporate atmosphere, and the public atmosphere has changed."

Lawyers for the news media say that the legal climate for those seeking to protect confidential sources is turning chillier, with more subpoenas being issued to reporters. There is no database that tracks such subpoenas, and some prosecutors dispute that they are on the rise. But a series of high-profile cases involving confidential sources has the news media on edge.

"It does feel like open season," said Laura Handman, a First Amendment lawyer based in Washington. "There are more instances of courts ordering confidential sources to be disclosed," she said, adding that she believed the Bush administration's emphasis on secrecy was partly to blame. "This leads to more leak inquiries, which, in turn, leads to more subpoenas."

In the last year, more than two dozen reporters across the country have been subpoenaed or questioned about their confidential sources in cases before federal courts, according to the Newspaper Association of America. Paul J. Boyle, senior vice president of the association, said he believed that "the filing of subpoenas, as well as the letters and phone calls that media companies receive from prosecutors and civil litigants, is on the rise."

Kurt Wimmer, a media lawyer whose firm, Covington & Burling, represents 45 television stations in 40 states, said he had as many subpoenas against reporters in the first three months of this year as he had in all of last year.

He said those subpoenas were largely inspired by the looming prospect over the last several months that Judith Miller of The New York Times and Matthew Cooper of Time magazine would go to jail for refusing to testify in a grand jury investigation into the disclosure of the identity of a covert C.I.A. operative, Valerie Plame. The Supreme Court last week declined to hear the reporters' appeal, intensifying one of the biggest clashes between the news media and the courts in a generation.

"When the Supreme Court says there's nothing wrong with forcing reporters to testify and go to jail, other lawyers are looking at that and saying, 'Why shouldn't I subpoena a reporter?' " Mr. Wimmer said.

Others doubt that there have been more subpoenas recently, saying it may just seem that way because a handful of cases have become so prominent. They say that regardless of the numbers, there is nothing wrong with pursuing justice if a reporter has been manipulated by a source and published misleading information.

In another case last week, a federal appeals court in Washington upheld contempt orders against four reporters who had refused to disclose their confidential sources to Wen Ho Lee, an atomic scientist who had been suspected of passing secrets to the Chinese but pleaded guilty to a lesser charge. He is suing the government for giving information about him to those reporters, violating his privacy.

Brian A. Sun, a Los Angeles lawyer who represents Dr. Lee, said that while he did not see more subpoenas, just more publicity about them, he agreed that the Miller-Cooper case "could encourage other prosecutors to utilize the tools that they have had available to them." In Mr. Sun's view, what is behind these cases are leakers who have "less than altruistic motives" and are using reporters, while those reporters in turn are looking to break a big story.

The heightened interest in national security issues since the Sept. 11 terrorist attacks has drawn attention to some cases, said Martin London, a New York lawyer who has litigated several media cases and subpoenaed nearly a dozen reporters in 1972 on behalf of Spiro T. Agnew, the former vice president. At the same time, he said, high-profile scandals at various news organizations, including The New York Times and CBS News, have undermined confidence in the news media.

"I don't buy that there is any increase in subpoenas," Mr. London said. "The Miller-Cooper case is very unusual, it has a lot of wrinkles that are just sort of extraordinary. But it's perfectly reasonable in a post-9/11 world for the government to be concerned about the security of C.I.A. information."

John Nowacki, a spokesman for the Justice Department, said the department would not comment on the use of subpoenas against reporters.

Mr. Boyle and others said there was a change after a 2003 ruling written by Richard Posner, an influential federal appeals court judge in Chicago, who said that lower courts had been misreading a 1972 Supreme Court decision, Branzburg v. Hayes. That case in fact rejected the idea of First Amendment protections for reporters, but media lawyers over three decades managed to convince judges otherwise.

"He seems to have freed some of his colleagues to pull back on the privilege," said Sandra Baron, executive director of the Media Law Resource Center.

Patrick J. Fitzgerald, the special prosecutor in the Miller-Cooper case, has served as something of a role model for those who are seeking information from reporters. Mr. Fitzgerald has employed a technique based on the idea that if a source no longer requires confidentiality, the reporter's pledge to keep it is moot. He has sought and obtained waivers from suspected sources releasing reporters of their confidentiality agreements, making it harder for reporters to claim they are bound by a pledge not to talk.

Through this approach, Mr. Fitzgerald obtained at least limited testimony from journalists including Tim Russert of NBC, Walter Pincus of The Washington Post and Mr. Cooper. Mr. Cooper was subpoenaed again and refused to testify, although Time Inc. has turned over his notes to the prosecutor, a decision with which Mr. Cooper said he disagreed. Mr. Cooper and Ms. Miller face another court hearing Wednesday to learn their fates.

Mr. Phelps, for one, lamented this turn of events and said it was only likely to chill potential sources in the future. "The fact that some news organizations have cooperated in this case is going to put a little seed of doubt in people's minds about whether they can really depend on reporters or not," he said.

And there is a rising concern among reporters that those people might be right.

"The biggest fear that most reporters have now is not having their mail taken or their phone records taken without their being told," said John Solomon, who oversees investigative reporting for the Associated Press and who had both of those things happen to him, in 2002 and 2001, respectively. "The biggest concern is that they'll write about something and will be forced to talk about it."

Representative Mike Pence, the Indiana Republican who is pushing, so far unsuccessfully, for Congress to pass a federal law to protect journalists, said that fear was justified. "No reporter, as the law has evolved in the last 30 years, can give absolute assurance to any source that at no time will their identity be disclosed," he said.

In addition to the Lee and Miller-Cooper cases, there have been several other high-profile cases involving confidential sources. Jim Taricani, a reporter with WJAR, a television station in Providence, R.I., refused to reveal the identity of the person who leaked him an F.B.I. videotape of a politician taking a bribe. He was sentenced to six months of home detention in December and was released after four months.

Nine news organizations have been subpoenaed in the case involving Steven J. Hatfill, a scientist, who sued federal officials under the privacy act for naming him as a "person of interest" in the 2001 anthrax investigations. As many as 100 federal agents have waived any confidentiality agreements they had with the media in that case.

Ms. Miller of The New York Times and a colleague, Philip Shenon, are under subpoena for their phone records by a grand jury investigating the leak of information about a planned F.B.I. raid on an Islamic charity suspected of funding terrorism. In February, a federal district judge in New York held that the reporters had a right to keep their phone records confidential.

The cases come as polls show the public has a deepening distrust of the news media, although a study by the Pew Research Center last month found that 76 percent of Americans think the use of confidential sources is at least sometimes justified.

Michael Getler, the ombudsman for The Washington Post, cautioned between linking what he agrees is a rise in the number of legal proceedings over sources and the low regard in which the news media is held. "There clearly is a more widespread ideological assault from both sides on the press these days, and that may well be feeding some of the prosecutorial zeal," he said. "But I don't know that that is really the case. I don't think we know enough to say exactly what is driving individual prosecutors."

Copyright 2005 The New York Times Company