Not Revealing Sources

OCTOBER 15, 2004:
In the now-famous Valerie Plame case, many reporters have been threatened with jail time for not revealing their sources. The case involves a grand jury investigation into the leak of the identity of CIA officer Valerie Plame, whose name was disclosed by a syndicated columnist on July 14, 2003. Disclosing the identity of a covert officer for the Central Intelligence Agency can be a crime. It has been suggested that the White House might have leaked Plame’s name as retribution for her husband’s criticism of the president.

The reporter who disclosed Plame’s identity was columnist Robert Novak. Novak cited “two senior administration officials” as his sources. He has not yet been subpoenaed.

Journalists who may have information about the leak have been threatened by the courts:

· Time reporter Matthew Cooper was the first to be subpoenaed in the Plame case. This past August, Cooper was ordered to name the government officials who disclosed Plame’s identity, and Cooper refused. Cooper was held in contempt and threatened with jail time until he named his source. Time Magazine was also fined $1,000 a day.

Although Cooper agreed to give private testimony to the special counsel investigating the leak when the source - Vice President Dick Cheney’s Chief of Staff Lewis Libby - allowed it, he is still being threatened with a $1,000 fine and up to 18 months in jail. The judge issued a broader subpoena demanding everything in Cooper’s notebook. He refused on First Amendment grounds: “No reporter in the United States should have to go to jail for simply doing their job,” he stated.

He is currently filing an appeal.

· Walter Pincus of The Washington Post was also subpoenaed and likewise threatened. Much like Matthew Cooper, Pincus revealed his source only after the source’s written approval was obtained.

· Currently, New York Times Reporter Judith Miller is being held in contempt and faces up to 18 months in prison. She is currently free pending appeal, but the threat against her is very real. “It’s frankly frightening that just for doing my job and talking to government employees about public issues, I may be deprived of my freedom and family,” Miller said in a statement.

The New York Times backs Miller and the First Amendment. Arthur O. Sulzberger Jr., publisher of the New York Times said, “the pending imprisonment of Judy Miller is an attack on the ability of all journalists to report on the actions of governments, corporations and others. The Times will continue to fight for the ability of journalists to provide the people of this nation with the essential information they need to evaluate issues affecting our country and the world.”

Miller has said she has no intention of naming her sources, and is aware she may be jailed for this.

This sort of coercion is quite disturbing. Journalists protecting their sources are threatened with jail time, and the sources feel pressured into coming forward and revealing themselves, however reluctantly. This process not only makes true confidential sources a thing of the past, but uses journalists as pawns. They are not the ones who exposed Valerie Plame, yet are the ones facing jail time and contempt charges. They are being punished for exercising their First Amendment rights.

Furthermore, the actions of judges in the Plame case has opened the door for this kind of intimidation of journalists in other cases:

This summer, the U.S. Attorney’s Office in San Francisco requested that San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams voluntarily turn over transcripts of secret grand-jury testimony the office believes they received in relation to the BALCO steroids scandal.

A week after Matthew Cooper was held in contempt for the Plame case, a judge held five reporters in contempt for refusing to identify their sources about Wen Ho Lee, a former nuclear weapons scientist once suspected of espionage.

The judge imposed a fine of $500 a day to AP reporter H. Josef Hebert, New York Times reporters James Rizen and Jeff Gerth, Los Angeles Times reporter Robert Drogin, and ABC’s Pierre Thomas. The reporters and their lawyers argued that they provided all the relevant information they could without breaking their commitment to their sources, and still honor the First Amendment.

The government intends to get records of confidential communications between journalists Philip Shenon and Judith Miller and their sources. In response, The New York Times is suing Attorney General John Ashcroft, saying the government’s demand for telephone records meant the records would expose the identities of dozens of confidential sources used by the reporters for an array of articles about Sept. 11, the government’s handling of continued threats from Al-Quaida, and the war in Iraq.

This sort of disregard for journalists’ rights is appalling and of deep concern to PEN USA’s First Amendment Action Committee. This continued violation of the First Amendment by the courts means sources will be afraid to come forward, fewer investigative stories will come to light, and that Freedom of the Press is compromised and threatened.

Greater good of revealing sources

By Jack Fuller

I’ve got something for you. But you didn’t hear it from me, alright?Sometimes reporters hide the most important fact in a news story. And other reporters are in on the game.
The revelation by Newsweek’s Michael Isikoff of the original source of information blowing the cover of a CIA agent has provided a stark example of a dirty little secret of news-media behavior.
Not only do reporters offer to keep sources’ identities secret in return for information, but other reporters almost never do what Isikoff did–reveal competitors’ sources–even when going public with the identity would change the very meaning of the story.

Isikoff’s revelation did just that.

Three years ago syndicated columnist Robert Novak wrote that Valerie Plame,wife of a man who had publicly attacked the Bush administration’s Iraq policy,worked for the CIA. A scandal quickly ensued. Somebody in the administration,it seemed, had leaked the information about Plame in order to get back at her husband.

Under pressure, the Bush administration appointed Chicago U.S. Atty.Patrick Fitzgerald to lead a criminal investigation into the leak. Then came subpoenas to reporters. Then a refusal by a New York Times reporter to honor the subpoena, resulting in a prison stay for contempt of court.

Isikoff reported in Newsweek (and in a new book co-authored by journalist David Corn) that it was former Deputy Secretary of State Richard Armitage who told Novak of Plame’s CIA employment. Armitage is not considered one of the administration’s attack dogs. The premise that the administration was willing to give up a spy for narrow, vindictive political ends fell apart.

Incredibly, it took three years for the story to get out. Either theinvestigative reporters in Washington aren’t very good or they weren’t really trying.
Journalists argue that they have to promise some sources they will keep their identities confidential in order to get them to pass along hidden facts that the public needs to know in order to understand important matters.

Though some reporters make the promise by reflex, in general the practicedoes significantly increase the amount of useful information the public receives. The reporting technique may be overused, but it is completely justified.

But does it follow that other reporters should honor their competitors’ promises?
A reporter’s whole professional purpose is to reveal information that has significance to the public. In the absence of a compelling reason not to, a reporter should make important facts public, not hide them.

The best argument for protecting the anonymous sources of other journalists is that anything that makes a potential leaker less sure his identity will be kept confidential will, in the long run, impede the flow of information.

That becomes untenable, though, when a major public debate warps because the public does not know the truth about who leaked a piece of information. The strategic leaking of information by the government and its critics is so widespread that it has become central to the political process. But because journalists very rarely examine it (and even then their searchlight is usually dim), they are not presenting a complete picture of the way politics works.

This is not to say that every time some reporter uses an anonymous source,others should try to out the leaker. That would be a waste of time and would chill disclosure without offsetting social value.

But reporters should try to reveal the identities of competitors’ sources when the disclosure would significantly add to public understanding. The unwritten journalistic rule against this needs to be repealed.

Isikoff has worked close to controversy before. He tried to break the Monica Lewinsky scandal but was thwarted by his editors, only to be scooped by Internet sensationalist Matt Drudge. He wrote a Newsweek item, later retracted, that U.S. interrogators had tried to shake up terror suspects by flushing a copy of the Koran down a toilet.

In this case he violated the unspoken code of his craft–and did both the public and his craft a great service.

Tips for police confrontations

Miami photographer Carlos Miller was found guilty of resisting arrest in a drawn-out legal battle over taking photos on a public street, but what is astonishing in this case is how the judge reacted. Even though the prosecutor asked for only three months probation and court costs, Judge Jose L. Fernandez slapped Miller with a year probation, court costs, 100 hours of community service, and anger management class. In court the judge told Miller he was appalled by Miller's non-remorse (for taking pictures in public?), body language during trial and chit-chat with his relatives. The jury found Miller innocent of disobeying an officer and disorderly conduct, but guilty of resisting arrest, according to Miller's blog.

The case stemmed from an incident Feb. 20, 2007, when Miller was doing freelance photography for a story about Miami's rapid gentrification. He came across several Miami police officers interrogating a man and began taking photos, on a public street. Police ordered him to stop and to cross the street. Miller identified himself as a journalist and noted that the street is public, then police threw him to the ground and arrested him. Before becoming a freelancer, Miller had worked for the Arizona Republic and other newspapers in Arizona, New Mexico and California.

The Society of Professional Journalists provided legal aid to Miller through its Legal Defense Fund. It's an outrage when the justice system forgets that people have a right to observe and photograph in public. The photographer was not interfering with anything. Just taking pictures. It's similar to the Albuquerque television cameraman who was arrested in a similar situation. See an update story last week stating that police will be required to go through training but the photographer still has a court date set for July 1 for failure to obey.

Tips for police confrontations:

If police attempt to prevent you from gathering information in a public place, object, follow their orders, then call their superiors and get it worked out. Stay outside of police tape with the rest of the public. If it's crucial you stay there, or there is no crime scene established, then you make the call (in consultation with your boss or lawyer if you have time) on whether to stay. But if the police arrest you, do not resist and be prepared to go to jail and potentially have to fight in court. Contact media organizations, such as your state press association and SPJ to get the word out. Write about it. The main thing is not to lose your cool. A photographer in Washington state had a heated argument where he got in an officer's face, their noses touched and so police charged him with simple assault and obstruction of justice. Fortunately, the charges were dropped, but it might not have worked out that way.

For more tips on your rights to public places and crime scenes, see the Reporters Committee for Freedom of the Press "field guide." Also see the RCFP guide to access to places, specifically the part noting that journalists are not immune to prosecution for ignoring police commands. For photographers, see the RCFP Guide to Privacy, the National Press Photographers Association Web site, and the Criminal Justice Journalists Web site (particularly their great guide to covering crime and justice). Also, the Dart Center has some great tip sheets for covering victims and crime scenes. Ultimately, stay cool but stay strong. Long after the confrontation is over, it's better in the eyes of a judge, jury, or the public, that you were the sane, level-headed person, and that the police were out of control and unreasonable.

When in doubt, consult your boss, organization's attorney, or the RCFP legal hotline, 1-800-336-4243. If you get in legal trouble and need some financial help, contact SPJ and submit a request for Legal Defense Fund help.

Published Thursday, June 19, 2008 12:10 PM by DavidCuillier