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floyd abrams

One of America's most well known First Amendment specialists, Abrams has represented The New York Times in several notable cases, including the Pentagon Papers case, Wen Ho Lee's civil suit against the Times, and special counsel Patrick Fitzgerald's investigation into the leak of former CIA agent Valerie Plame's identity. Abrams also represented Time magazine in the latter case. This is an edited transcript of an interview conducted on July 10, 2006.

... Have things come sort of full circle in 35 years [since the Pentagon Papers]?

Well, they've come full circle in this sense: Some of the battles we thought had been fought and won still remain to be fought. What we did win -- a near-absolute ban on prior restraints, injunctions against speech -- is still good law.

That still stands today.

That still stands, and it would stand. If the government had gone to court to try to prevent publication of some of the recent controversial pieces by The [New York] Times, I believe we would have won because of the Pentagon Papers case. I'm not sure we would have won if there had not been a Pentagon Papers case. ...

But the overhanging question is: All right, they can't stop you in advance. Can they put you in jail? Can they punish you after the fact? It's that that's being bandied about by some critics of the Times and some people within the administration who feel very strongly that the Times ought not to have published certain materials.

You say "some critics." The attorney general of the United States [Alberto Gonzales].

The president.

The president himself, the Congress of the United States -- at least the House of Representatives. It's more than just critics.

Yes. Not all of them are mentioning criminal prosecution. The attorney general did. The president didn't in so many words. He said it was disgraceful. The vice president [Dick Cheney] said it was disgraceful for the Times to have published. They didn't speak directly to the issue of any legal sanctions, but there's no doubt that with those sorts of comments being made that we're at a higher level of risk I would say now than probably at any time since the Pentagon Papers.

It just seems like déjà vu all over again -- I mean, The New York Times, national security-related stories, the government reacting and saying the Espionage Act may apply here.

Right. But there's some differences. One difference is that the press is not in as good stead with the American public now as it was in 1971 and in the early 1970s, which was probably the heyday of the notion of journalists as romantic heroes.

“The law can't and shouldn't distinguish, and I would say journalists can't and shouldn't distinguish between good sources and bad, virtuous sources and unvirtuous ones. If a journalist grants confidentiality, I think the journalist has to keep her word.”

Nowadays it's not easy to find a full-throated supporter of the press on the bench, in Congress or otherwise. There are judges who would vote for us, but a lot of them with more reluctance than would have been the case 35 years ago. ...

Is the press in a weaker situation today than it was 35 years ago?

Yes, it's in a weaker situation. The members of the Supreme Court are certainly less likely to be vigilantly in favor of the press. We had four votes going into the oral argument in the Pentagon Papers case that we could not lose. There was nothing we could say, no error we could make that we could have lost any of these four votes, because they just felt so strongly that the Times was right to publish. ...

Those days, I think, are over. There were two members of the Supreme Court then, Justice[s] [Hugo] Black and [William O.] Douglas, who were really absolutists. They didn't believe the government could stop the press from printing news really under any circumstances. There's no one who is of that view now. I would say the most consistently protective jurist vis-à-vis the press now is Justice [Anthony] Kennedy. His views, while extremely protective of the press, are nonetheless a lot less predictable than was the case of some of the people on the Court as of 1971. ...

Journalists are not licensed professionals. We're not doctors; we're not lawyers; we don't give a marriage license to anybody. So why should we have a privilege?

Well, not because you're all great guys. The only reason you should have a privilege, if you should, is because of what you do. It just may be so important to keep the process open of gathering news and disseminating it to the public -- that may be such an important, a pro-public interest factor that there should be a significant level of legal protection for the press.

Many courts have said that, and just about all the states now have said just that; that because of the function played by the press, the role of the press in American life, that with all the qualms people may have, ... that it's important enough to keep the press free of fear of going to jail, of not being able to promise confidentiality and mean it to a source, that there should be legal protection. ...

One of the advantages we have of interviewing you is that you were not only involved in the Pentagon Papers case, which was a victory, but then you were also involved, as I understand it, in the Branzburg [v. Hayes] case.

Right. I did a brief in the Branzburg case together with the same Professor [Alexander] Bickel who was counsel in The New York Times Pentagon Papers case on behalf of a large number of media entities urging the Court to create some sort of protection for the press.

And you lost.

Well, we lost. How much we lost still remains in dispute. There's no doubt that we lost. Where there is doubt -- and the reason that the law is maybe surprisingly unclear all these years after the 1972 ruling in the Branzburg case -- is that it was a 5-4 decision. And the fifth vote, Justice Lewis Powell, wrote a separate opinion saying things which sure sounded like he was saying: "Don't worry. It will be all right. We will still have a level of case-by-case balancing which will go on in this area as it's gone on in lots of other areas in the development of American law."

So lots of judges, lots of courts around the country and lots of legislatures have said that, after all, while there's no absolute privilege for the press, that there is a sort of qualified legal protection.

Now, some judges don't agree with that, and we may find out one of these days from the Supreme Court one way or the other just how to read the Branzburg case. ...

You just went through the Valerie Plame/[Scooter] Libby case. The appellate court in that case spoke directly, spoke very, very clearly, and said Branzburg stands; there is no ambiguity.

That's what they said: There's no ambiguity at all. There is no protection, the Court of Appeals in Washington said, for journalists in situations in which a grand jury seeks information in good faith from a journalist, period.

And particularly where there may be national security information involved.

Particularly so. That is one strongly held view, but it is not the only one. I mean, there are four circuits, four Courts of Appeals in the country, that in criminal cases have said there is legal protection -- qualified to be sure, but genuine legal protection for the press, even in the context of a criminal case.

But not necessarily national security.

Not necessarily.

Doesn't that change things when we're talking about national security?

It can, although I'm not sure that certain types of national security would give the government a better claim than, say, a defense attorney who is getting up in court saying, "My client might be executed if I don't have this information from the press." I had such a case in New Jersey for The New York Times representing Myron Farber in 1978 in which the chief justice of the New Jersey Supreme Court said to me: "Don't you understand? Someone may be executed because your client won't tell the information he knows."

I was finally driven to say: "Your Honor, I know the information. If all you really cared about was finding out the name of the source, you would ask me. I'm right in front of you; I know the information. And you won't do it because we have something called an attorney/client privilege which you accept, which is part of the statutes of New Jersey. What I'm arguing to you is that the privilege which the New Jersey Legislature has established for journalists is the same, and that you should give it the same respect."

The court did not in that case, and Mr. Farber went to jail for 40 days. But there are courts that have done so, and that's why this is still an undecided area.

But prior to what happened in the [appeals] court in Washington, Judge [Richard] Posner in Chicago issued a decision. Explain that decision. That decision seems to have been very influential.

Judge Posner wrote an opinion in a case involving confidential sources having nothing to do with national security in which he basically said he was surprised that so many courts had said there was legal protection after the Branzburg case. But the way he read the case, there really wasn't much, if any, legal protection at all for the press to protect its confidential sources.

In federal court.

In federal court, and particularly in grand jury cases. That case has been influential with a number of other judges. In a few circuits, a few areas of the country, judges have leaned on that case.

But that's just a way of saying some judges view it one way, some judges view it another. It's not a dead issue. It's not a done matter.

We have a case in New York now where a federal grand jury was trying to obtain telephone records of [reporter] Judith Miller and another New York Times journalist. We went to court here in New York City to protect telephone records. We won in the District Court. We're awaiting a decision now in the Court of Appeals. But the court said: "We disagree with the Washington Judith Miller case. Here in this part of the country, we think the court in Washington is wrong in saying that there's no legal protection." That's why I say that this is still a live and open issue.

But is this just the hope of a lawyer when the Supreme Court, for example, refused to take the Miller case, refused to review the appellate court in Washington?

I don't think this is just the hope of a lawyer. Remember, in the Miller case we had all sorts of problems. ... It was not the case one would choose as the case to make new law on or to clarify the law on. But we didn't have any real choice, because the case was the case. Those facts were those facts. But the reality was that the Miller case was a peculiarly difficult one from the start, I think, to get the Court to hear.

... Given the nature of the Supreme Court, if you had to appeal again to the Supreme Court, do you think you would win on any of these issues?

The notion that there is what's referred to as a federal common law -- that is to say, that the federal courts should say and will say eventually that there is legal protection, qualified but real legal protection for the press because 49 of the 50 states have said so, because there is a public interest being served by having such protections.

But factors such as those were precisely what led the U.S. Supreme Court in 1992 to say, on its own, without Congress acting, that there is a psychotherapist privilege; that there is a social worker privilege. And they said Congress has in effect passed the ball to us to decide whether such a privilege exists or not. I think that we have a very serious chance of prevailing if we want to get to the Supreme Court on that issue.

You referred to the facts in the Miller case and some other aspects of it not being necessarily the facts that you would really want. What do you mean by that?

If you could choose your factual case, it might be one closer to the Pentagon Papers case, where the material at issue was historical in nature, ... where there was a showing of government wrongdoing of some sort. That's the sort of case you'd like to have. Those aspects were missing in the Miller case.

Also, in the Miller case, there was an ongoing investigation of very high-ranking people in the administration, and very few members of any Supreme Court would easily cut that off. I think that the members of this Court as well were unwilling to do so. I'm not saying they would necessarily have taken the case otherwise, but I think factors such as that strongly gravitated against us.

... Explain. What was the case about?

Well, both Judith Miller of the Times and Matt Cooper of Time magazine, both of whom I represented through the Court of Appeals, had had various conversations with high-ranking people in the administration -- one, Lewis "Scooter" Libby, the chief of staff of the vice president; another was Karl Rove, chief domestic policy adviser to the president -- and as a result of those interviews had learned certain things about the wife of a dissident former ambassador who disagreed with the administration's Iraq policy and then who had been sent by the CIA to Niger to check out certain stories that had been bandied about about Saddam Hussein seeking to purchase what were in essence the basis for building atomic weapons in that African country.

In one way or another, in certain language that was used, Miller learned that the wife of the former ambassador, Joseph Wilson, who had been sent on this mission by the CIA, was herself in the CIA. Matt Cooper learned basically the same sort of information. Miller never wrote a story about it. Cooper wrote a story criticizing the administration for leaking critical things, in effect seeming to want to use against Mr. Wilson the fact that his wife was in the CIA and therefore suggesting that there was something improper in his being asked to go to Niger in the first place.

Nepotism of some kind?

Yes, yes. That was the tone, certainly. So Cooper's article was a blast at the administration.

So why were the facts bad?

... The investigation was said to be about whether there was a violation of the law which makes it a crime to reveal the identity of a CIA agent under certain circumstances. In that circumstance, where what's involved sounds not only important but potentially life-threatening to a CIA agent or people with whom she dealt, where the journalists are the ones who have or may have information directly relevant to answering the question, who leaked the information?

It's a very tough case to persuade a court that you want to, in effect, give the journalist a free pass and say that he or she doesn't have to testify. That's the starting point from a judicial perspective. Not many judges would be prepared to downgrade the potential significance of such a case. That was one of the things that from the start made the case so difficult from our perspective in trying to persuade the Court that they should not require the journalists to reveal the information.

But aren't those facts exactly what persuaded other publications, other attorneys to advise their clients -- The Washington Post, NBC -- that they should cooperate in some fashion?

Those facts had something to do with it, and the degree of involvement of their journalists had something to do with it. A lot of journalists knew a lot less than Judith Miller did. And how shall I put it? The degree of commitment of some of the journalists varied from person to person, commitment to protecting confidential sources.

Judith Miller took very, very seriously the obligation she had undertaken to Mr. Libby, for example, not to reveal who he was. Other journalists -- I'm not blaming them -- but other journalists and their lawyers tried to find a way out.

... This wasn't the battle worth fighting.

And I understand that. But her view was she'd made a promise, and rather than try to cut a deal, we should fight it as long as we could and as hard as we could. Then if it wound up with her going to jail, that was the price involved. That was not the view of certain other journalists and certain other publications. But I can tell you from the inside that it certainly was the view of Judith Miller, of Matt Cooper and of the Times and Time when this all began. …

It seems in this case, there seem to be two major bad facts. One was the prosecutor [Patrick Fitzgerald] came up with a method for releasing the journalists from their pledge of confidentiality. He had almost everyone involved in the White House sign a waiver that said, "You don't have to protect me anymore."

Yeah. ... Now, what is a release became a more complicated question. But neither Judy Miller nor Matt Cooper was ever persuaded for a moment that a piece of paper prepared by the Department of Justice and submitted to people in the government with a clear understanding that if they didn't sign it they couldn't work in the government anymore, that that could not be sufficient to constitute a genuine waiver. ...

Have you ever seen a prosecutor come up with this method for, in a sense, getting journalists to testify in court?

No. no. I have never seen it with forms filled out waiving confidentiality. That may be one of the real dangers of the future. Certainly a few judges already have been persuaded that there's no confidentiality at all if a source has signed a piece of paper saying it's OK with me if reporters testify. Indeed, the way the government phrased the form was to have the source in effect say, "I encourage you, I ask you, I want you to cooperate with this investigation."

... The other bad fact was that whoever was being protected apparently by Ms. Miller and Mr. Cooper wasn't really a whistleblower, was apparently someone out to damage the reputation of a dissenter.

... It's true that in a situation in which what is involved is not a whistleblower exposing misconduct within the government, say, but someone within the government, particularly in a situation in which it could be said that the person's using his position to attack someone else, in that circumstance it made it a still more difficult case. No question of that.

Now, my own view is that the law can't and shouldn't distinguish, and I would say journalists can't and shouldn't distinguish between good sources and bad, virtuous sources and unvirtuous ones. If a journalist grants confidentiality, I think the journalist has to keep her word.

The hard questions, I think, are much more in the area of when should you grant confidentiality, not whether you should keep your word once you do it. One of the hardest problems, which I think people don't recognize, is that journalists frequently don't know what the answers will be to the questions they ask until they ask them. So if a source says, in substance, "I won't tell you that," or, "I won't talk to you unless it's on terms of confidentiality," and the journalist says, "OK," then the journalist is about to hear for the first time the information of the source. And that information can be -- what? Socially advantageous to the public, or maybe even socially harmful?

There are dangers in granting confidential treatment, but it seems to me very important for the credibility of all journalists and for the general free flow of information to come to the public for journalists who, having once promised confidentiality, keep their word about it. ...

What you're saying is, if I understand it correctly, that the way in which this subject area has been covered in the press, discussed in court, in many ways misses the point that journalists in process have to grant to people confidentiality in many cases just to hear what's said, and as long as they don't publish it, they shouldn't really be liable.

Yeah. Look, as a usual matter, [that] Judith Miller was not to publish the information would give her complete protection. No one could sue her for libel for something she didn't say. No one can say she violated the Espionage Act for something she never communicated.

But the unusual thing here is that because another journalist, Robert Novak, published an article containing essentially defamatory charges against Mr. Wilson, the former ambassador, and his wife, the CIA executive, this investigation began. And because this investigation began about Novak's sources, it drifted into lots of other people, including Judy Miller, who wound up in jail for protecting her own sources, which she never disclosed until other events occurred much later on.

But that's the unique, the sort of special factual situation here. Why was she in trouble? It wasn't because of anything she did. She was in trouble because there was an investigation caused by Novak's article -- Novak, who never went to jail. And when she was asked who your sources are, she wouldn't reveal them.

… Ms. Miller was not particularly popular amongst her colleagues. There wasn't a big movement inside the journalist community to her side. Even other organizations went in different ways.

Yeah. There was a good deal of support for her from virtually every journalistic organization. But there were people with whom she had worked who later wrote very harshly about her and were never sympathetic --

A "woman of mass destruction."

-- to her cause. There was also a political aspect here. And that is that a lot of the people who would ordinarily be more sympathetic to the notion in the abstract of protecting journalist sources were very angry at Judith Miller. Because they thought she had the wrong sorts of sources -- that is to say, not just whistle-blower sources, but people in the administration. The same administration that a lot of these people strongly disapproved. …

That was very harmful too because the constituency for her was significantly limited by what I view as the politicized reaction of a lot of journalists and others on the left in this country who simply would not support her and would not support what I -- we -- call the cause of protecting confidential sources because they didn't like the politics of this confidential source. It's a terrible reason. Terrible.

All sources should be protected equally?

Politics shouldn't be involved. The political views of journalists should not be the determining factor as to whether they support other journalists as they try to keep their promises to their confidential sources.

If we're going to have a political litmus test, then we're not talking about principle at all. Then we're just talking about, you know, is this a good way to get the Bush administration? Or is this a good way to help the Bush administration? Nothing to do with matters of principle. And one of my biggest regrets, looking back on the Miller case, is the amount of people who should have been, in my view, supportive of Judith Miller and were not because of what were essentially political reasons. …

Now, in the end, Judy Miller, because of the appellate court decision in Washington, goes to jail. But there was a waiver. Didn't that undermine that whole idea?

We have to be clear about what we're talking about when we talk about a waiver. There was a signed statement by Libby. She simply would not credit that.

Did you ever see that statement?

Yeah. Pat Fitzgerald showed it to me, so there was never any doubt that he had it.

Then there was something a lot more complex, and that was the impact of certain discussions I had with Mr. Libby's lawyer when I called him at one point basically to say: "What does he want? Basically, what does he want of her? What would he like her to do?" And the answer at first was: "We've told everybody that they can testify, every journalist. That's the same with her as well. And we signed the form. He signed the form."

I said, "Well, wasn't the form coerced?" And the answer was: "Oh, of course the form was coerced. How could it not be coerced? He'd be fired unless he signed the form." Well, that, to me and to Judith Miller and to the folks at the Times, sent conflicting messages. Were they saying yes because they had to say yes, so they could tell Fitzgerald that they said yes? Or were they saying yes because they meant yes? That was always a problem.

One of the real problems here, which I came to think about much more after the fact than during the discussions, I started to ask myself, what is it I would expect a lawyer for Mr. Libby to say? What is it that he could say? Could he say, "Mr. Libby would like her to keep to her promise of not disclosing anything about their conversations which is attributable to him"? There's a problem with that. The problem is that may be obstruction of justice, a statement as clear as that. ... So I started to think to myself, well, he's not allowed to say, "No, don't talk." How much can we make of the fact that he initially said, "Yes, do talk"? What is the reality in this type of situation?

It was that that, in fact, wasn't really resolved from Judith Miller's point of view until she'd been in jail over 80 days. And the subject came up again of the voluntariness, and she finally said: "Look, I am not going to testify based on some writing of his which he was forced to say, and I'm not going to testify based on anything that his lawyer says to you. I know him. He wants me to testify, have him pick up the phone and call me. Have him visit me in prison and persuade me that that's what he wants me to do. Otherwise I won't do it."

Eventually that led to a phone call and a letter from Libby to her, and that's what was the final bit of persuasion, which finally had her agree to testify and to get out of jail.

OK. So when Mr. Libby's lawyer says, "I told Mr. Abrams that the waiver was voluntary"?

That is not true.

He's lying?

He told me that the written waiver was involuntary. What he did tell me at the beginning of our call was that it was satisfactory to Mr. Libby for her to testify.

He did say that.

He did say that to me.

A year before she went to jail.

Maybe not a year, but sometime before she went to jail. But that was the same conversation in which he also said that the written waiver that he had signed was involuntary, was coerced by its nature. And that is what led to a great deal of difficulty in making a decision as to whether to accept or not to accept the notion that he was really waiving confidentiality.

Did you call him back and say, "We're confused about what you meant"?

I didn't call him back because something else happened then. What happened then was that I needed two parts to solve this problem. I needed him to say it was OK in a persuasive way for her to testify, and I needed Mr. Fitzgerald to give me a level of assurance that even if she testified about Libby, that that would be the end of the matter, because it had not been the end of the matter with Matt Cooper. Fitzgerald had said to me basically, "Why don't we have a deposition of Cooper limited only to this one source, Libby?" And we finally agreed to that. And we had the deposition. He had reserved, as he had every right to do, his right to start all over again if he wasn't satisfied with the answers.

Time was already in contempt; Cooper was already in contempt. So we had this deposition. The effect of the deposition was he gave the deposition, and at the end of it we went to court. The contempt findings were lifted.

Then a few weeks later he said: "I've got to start again, because there's another source obviously that I don't know about. And since there is another source, I'm going to issue a new subpoena and start all over again."

Well, that was precisely what Judy Miller did not go through. If she was going to do a Libby-only deposition, she wanted a level of assurance that that would be it. At that time Fitzgerald was unwilling or unable to give that sort of promise, so we couldn't have the deal anyway. ...

There was another factor, too. All these discussions occurred early on in the case. We hadn't been to court yet. These discussions were to see if it was possible to avoid any legal battle at all.

It was certainly Judith Miller's view that absent the clearest sort of waiver, the most unequivocal sort of waiver, that we should fight the good fight; we should do whatever we could to protect her sources. Her view from the start had been different from that of certain other journalists.

Well, certain other journalists are [NBC's] Tim Russert, [The Washington Post's] Walter Pincus, others; Matt Cooper to a certain extent.

Look, different journalists have different views and different relationships, and different employers as well. Tim Russert had lawyers who went to court for him to fight the subpoena in the first instance, as did Matt Cooper. Other people may have had less discussions with sources about this or what they viewed as completely irrelevant --

Yeah, but you can't be sort of half pregnant when you're dealing with a criminal grand jury.

Yeah, I think that's a strong argument. But look, there were others who thought that they had acted -- particularly some lawyers -- very smartly by avoiding all this.

Bob Woodward kept quiet.

There were a lot of different ways of reacting to this. My point is only that from the start, Judy Miller's attitude about this was this was a confrontation brought about by Fitzgerald's insistence on pressing the point with journalists in a way that it had rarely been pressed before. . And that it was important for at least someone to stand up and fight even if she wound up losing. ...

Mr. Cooper -- explain why didn't he go to jail.

Mr. Cooper didn't go to jail because on the very day that we were having the final hearing, his criminal lawyer, who then came to be much more active in the case, ... had a discussion with Karl Rove's lawyer, which led Matt Cooper to conclude that he did have a genuine waiver from Rove to testify. And so he did.

Remember, he had already testified about Libby. The only question that was open is what would he say, if anything, about his discussions with Rove. And he was satisfied, based on his lawyer's conversations with Rove's lawyer, that he could testify, so he did not go to jail.

The only reason that I'm pushing on this particular area is that first, we have a disagreement between Mr. Libby's lawyer, Mr. [Joseph] Tate, and you about what went on. That's first. Second, Matt Cooper is able to get a waiver on the eve of sentencing, if you will, by contacting the lawyer and being satisfied. Why didn't somebody go back to Mr. Libby's lawyer and say: "Look, where are we? Stand up in public. Tell her to testify"?

The question of going back raises another related issue, which we spent a lot of time talking about, and that is, when does going back to the source amount to such pressure on the source that you're violating your obligations by the very fact of asking again and again? It's a very delicate relationship between journalist and source. ...

In the 30-odd, almost 40 years that you've been doing this, did you think this kind of problem was inevitable because of the way in which granting confidentiality became kind of a fad or a fashion in journalism, sort of done offhand?

I thought that it was inevitable in one sense, particularly with certain types of reporting, and particularly national security reporting in Washington. So much of what is said is said on a confidential basis that sometimes it doesn't even have to be said that people are speaking confidentially because it is so clear to both the source and the journalist.

Did I think in that sort of circumstance, in that sort of milieu, we could wind up with a real tough case? Sure, sure. I wasn't surprised, and I'm not surprised, and there will be more of them. We're not done with this. In order to gather certain types of information, certain promises have to be made. ...

[Former Time editor] Norm Pearlstine, who we interviewed, says that the only choice that the corporation has when it's faced with the subpoena and faced with, if you will, criminal contempt or contempt and worse is to give up their notes, to give up their files, and that's what he had to do.

Look, I think he was in a very difficult situation. I wouldn't deny it for a moment that what he did is what a lot of others in similar circumstances would believe that they had to do.

The New York Times took a different tack in the Myron Farber case in 1978. They refused to turn over material that they had. They refused to tell Farber to turn over the materials he had. They refused to fire him or to threaten to fire him or to sanction him in any way unless he complied with a court order. They were fined $285,000 -- $5,000 a day for a long period of time. They were willing to take that risk.

I think it's an overstatement for him to say that you have to do what he did. But it is not an overstatement for him to say, in effect, "It was a very difficult situation that I was in, and I made a rational judgment."

No, he's saying that a corporation cannot be involved in civil disobedience.

Well, I think he's wrong, and the Times' experience shows that he's wrong. A corporation has been involved in civil disobedience. But the corporation can't do it unless it's willing to pay the price.

When Judy went to jail, you said that it would endanger all kinds of investigative reporting, but since then we've seen the NSA [National Security Agency] eavesdropping story, the SWIFT financial investigations story, stories about data mining done of phone records by other newspapers other than The New York Times. Seems like it didn't stop anything.

You never know. You never know what's not happening. There are newspapers which have much stricter policies now. Some of them simply won't use confidential source materials at all. Some of them will not authorize journalists or promise confidentiality at all.

The New York Times has continued to be out front and to run greater risks because it believes institutionally that it is so important that stories such as the later surveillance stories or banking record stories be published. But that is not the case of a lot of other publications.

[The Cleveland Plain Dealer.]

Yes. Cleveland Plain Dealer announced that they were not going to run a story because it was based on confidential source information and they couldn't take the risks. A lot of newspapers and publications simply cannot bear the financial risks.

And because Norm Pearlstine -- even though I disagree with him -- but [he] is not all wrong in talking about the dangers to corporations in situations like this. More and more media entities have moved in the direction of limiting the use of confidential sources, sometimes for good journalistic reasons, but sometimes to avoid risk.

Is it possible that given the bad facts in this case, and given the decision to, in a sense, fight this on principle, that in the end what you did was make bad law?

It's possible. It's possible.

You got the appellate court to reaffirm Branzburg. Your friend [former Times counsel James] Goodale and allies have been trying to avoid a decision like that for decades.

Yeah. It just seems to me that there are some fights which have to be fought, and sometimes they have to be fought even [when] chances of winning are slight. At the end of the day, that's a joint decision. But we should remember that journalists themselves are going to be called upon to make the decision in the first instance of just what is it they promised and how far they're ready to go to defend the validity, the reality of the promises that they've made. ...

But the one lesson here is that the journalist may, as in Mr. Cooper's case, want to keep the promise, [but] that Time Inc., as a corporation, can make the decision independently not to, and that they have your files; they have your expense records; they have all that information.

No, there's no doubt that that is an additional complication which has to be dealt with by strategic means. Journalists have got to do more to protect their notes more in a way of not putting down in e-mail form material which can too easily be subpoenaed. If you're going to have confidential sources, you've got to take steps to protect the confidential sources.

So the meaning of this situation today is you're telling journalists, "Operate like you're a spy; don't leave any tracks; don't leave any records; and don't trust your boss"?

Not like a spy, but understand that you're in a very, very dangerous area here, and comport yourself that way. Understand that when you gather certain information from certain people, you are at risk and the entity for which you work is at risk, and unless you take steps to protect the information -- I mean, this is not a casual matter. This is not a matter of taking a few steps here and there, or being ready to go to jail. ...

You know, there was a recent settlement in another case, in the Wen Ho Lee case.

Yes, I was involved in that.

Confidential sources are involved, journalists weren't defendants, and yet you settled.

Yeah.

Doesn't that invite more?

That's the risk of it. It was a very painful situation.

Why did that happen?

Why was there a settlement? There was a settlement because the journalist had been ordered to testify. The ruling, ordering them to testify and holding them in contempt for not testifying, had been affirmed by the Court of Appeals. The Court of Appeals had then not agreed to re-hear the case, so it was done in the Court of Appeals in Washington.

In those circumstances in which the reporters might have been jailed and/or there might have been enormous fines levied on the publications for which the journalists worked, if they could get out by paying some reasonably small amount of money, it was a good idea to do so. But was it painful to do so? Absolutely. Absolutely.

Is there some risk that can encourage others? Yeah, yeah. In real life these days, there are a lot of really hard decisions, and one of them in the [Wen Ho Lee] case was whether to settle or not. But there were no more legal steps to be taken other than the possibility of the U.S. Supreme Court agreeing to hear the case, which post-settlement they declined to do. ... So a very tough decision was made to --

Pony up some money.

To pony up some money. At least it had the effect of protecting the journalists against being jailed and protecting the sources. It was a way of assuring that these sources would not be revealed.

It was to that degree certainly a highly principled act, but whether, as your question suggests, it could wind up leading to more problems in the future, it's hard to know. I think it won't. But it's a real problem. That just illustrates again the complexity of this area and the dangers that can befall journalists, newspapers, broadcasters in this area in the future. ...

After doing this for over 35 years, does this depress you or get your blood up?

Both. As a lawyer, it gets my blood up in the sense of, "Gee, it would be great to be in there fighting this one and maybe winning it." But as a citizen, it's really depressing, because it really is aimed at the destruction of the press as a credible third-party player.

The thing that strikes me is that you've got people, some of the best, least ideological people -- Andrew Card -- in the administration, being asked a direct question: "Don't you think that the press plays a sort of checking role on government?," and he said, "No, the press is just another special interest." He meant that. He wasn't saying that for political advantage.

The president's chief of staff.

The president's chief of staff. And I think that is probably the kindest, least angry response one would get from people around the president about the press, and that's very disturbing.

It's one thing to say, "Hey, look, you guys don't know what you're doing," or "You're messing up," or "You're biased," or whatever the argument is. But really, to deny flat out that the role of the press, certainly at its best, is to serve as some sort of monitor of government conduct and some sort of entity to try to help the public pass judgment on government misconduct, that's a very disturbing path we're going down. ...

Is it possible that there is a conflict here that's not resolvable in a court, that the very nature of the idea of reporting on national security, something which no shield law covers -- none that's ever been proposed by [any]one -- means that you have to take the risk of violating the law?

It may be. It may be that at the end of the day journalists and journalistic organizations that refuse to yield with respect to covering such matters, and that find that they cannot cover national security-related matters without promising confidentiality, may have to simply proceed at their peril. ...

Soon after Branzburg, the Justice Department came up with its own regulations limiting what it would do related to reporters. There was sort of an official truce. ... What's changed?

What's happened is that there has been an enormously increased polarization in the country of people based on their political views and enormously augmented within this administration, post-9/11, of the exclusive right to determine what is in the national interest, exclusive in the sense of trying to rule Congress out; exclusive in the sense of trying to keep the courts out; and certainly exclusive in the sense of trying to keep the press from publishing materials that the government thinks ought not, for one reason or another, to be published.

That's a big change. Governments have always been angry. Administrations have always been angry at the press. That's not changed. But the degree of the anger, and the sense that it is a matter of national priority as well as in the self-interest of the administration to really take on the press, to really go after them, to bring them down, that's something new, and something newly disturbing.

You're a big advocate of a shield law.

Yeah.

But a shield law is not going to cover national security.

A shield law would still require the government to make a very major showing that they had exhausted other sources, that they need the information from the journalists, and in particular from the journalist, and that taken as a whole, the interests of the country would be better served by having the testimony than not.

That at least gives the press the opportunity to argue to a court in let's say the surveillance case that the government was acting illegally, that the surveillance program was itself a crime, and that therefore, even in a genuine national security area, that the government should not be in the position of requiring the press to testify. That's a big step forward if that statute in its current draft were to go through.

So you're going to give the government a speed bump, basically, they've got to get over.

Well, I hope it's more than that. The most important thing to me, particularly in the leak area, is the importation into the legal test of some requirement that a government show not just that it's useful for an investigation and not just that it's gone to other places to look for the information, but that there will be significant public interest served by having the information as opposed to not having the information. But at least you get a neutral decision maker -- a judge -- to be in the position of passing on whether the information should be revealed or not.

Now, in the national security area, the press will lose some of those. I agree with you. But I think they'll win some also. What happens if they lose it? I don't know if what we're going to see is more journalists going to jail or more journalists testifying if they're ordered to testify.

Or fewer stories.

Well, I do think that if we start down the road of having more and more of these leak investigations that we will in all likelihood have fewer stories.

Let me ask you finally, this kind of litigation is expensive.

Yes.

Does that have a chilling effect?

No doubt. Absolutely, absolutely. ... In the Wen Ho Lee case, where the press isn't even accused of doing anything wrong, or [in] a Judy Miller case, [they] cost an enormous amount of money, have enormous disruptive effects -- at least the Miller case did -- in the newsroom, or preoccupying in the way that any large litigation is, but even more so where what is involved is an institutional threat to the behavior of a newspaper.

So the more of these that happen, I'm afraid the less likely it is, particularly for smaller entities that really cannot bare the burden of the high legal costs. ... [NBC's] John Chancellor once said to me many years ago that what he was afraid of in terms of the press is that it was becoming an institution that essentially writes about non-news, which is factual information, which is true, but not newsworthy. You'll never get in trouble doing that. ...

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posted feb. 13, 2007

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