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edwin meese

A former prosecutor, Meese was a longtime adviser to President Reagan and served as his attorney general from 1985 to 1988. Here, he discusses the complicated relationship between reporters and law enforcement. This is the edited transcript of an interview conducted on Jan. 8, 2007.

... Who are the Black Panthers, and why were they of such interest to law enforcement back in the late '60s?

The Black Panthers was what we would call today a criminal gang that was formed by Huey Newton. Now, interestingly enough, I knew Huey Newton before he formed the Black Panthers. He was a student of mine when I was a teacher, instructor at Oakland City College back in the very early 1960s. I was teaching law, criminal law, for police officers and people who wanted to be police officers, and one of the students in my class was Huey Newton.

He later wrote in his book that he was taking these law enforcement courses because he said he wanted "to know as much as the pigs knew." That's why he was taking this course. So I was somewhat surprised, because he was an excellent student and very well-mannered type of person, to [learn] some years later, in the latter part of the '60s when he formed the Black Panthers.

This was, as I say, essentially a criminal gang. They carried firearms openly; they intimidated people. He himself shot and killed a police officer during that time, the late '60s, early '70s. So it was a serious threat to public safety in Alameda County and in Northern California.

A criminal gang, not a political protest group?

I think they were involved in various protests, but essentially they were a criminal organization and committed crimes. As I say, he himself killed a police officer. ...

So today when ... you see the footage of them -- you know, "The revolution has come" -- how serious was that?

Well, I'd say it was very serious for its time. You had a number of criminal gangs like that around the country. You had the SDS, so-called Students for a Democratic Society. They had their violence-prone group, the Weathermen. You had the Black Liberation Army. You had the Symbionese Liberation Army in Alameda County and in Northern California which killed a number of people. They were involved in a shootout with the Los Angeles police at one time; they kidnapped Patty Hearst.

“There have been very few prosecutions of leaks, and it's amazing to me that the one prosecution we've had in recent years of leaks had to do with a case where no crime has been committed.”

So the Black Panthers were one of the earlier groups like that that posed a real threat, and in their time, they were as serious as terrorist groups would be today.

And that was the law enforcement view.

That was the law enforcement view, and that was the fact. ... There were different members of the Black Panthers that were indicted and tried for various crimes, convicted of various crimes. They were one of the many subjects of concern at the time.

[Why would the FBI ask a reporter, for example, Earl Caldwell of The New York Times, to cooperate with them?]

I don't know the particular instance you're talking about, but it probably had to do with information that a reporter had about the Black Panthers that would be helpful to law enforcement in investigating a criminal conspiracy.

But you know that a reporter really has to have the confidence of the people that he's talking with. Does the reporter become an arm of law enforcement in that situation?

I don't think a reporter necessarily becomes an arm of law enforcement. I think a reporter is like any other citizen. If a citizen can do his or her duty as a witness, if they have information about a crime or if they have information about a criminal group, I think that there's a duty on the part of the citizen.

Now, with a reporter, I think there's a special consideration that has to be made, because in order to get their story, they do need the confidence of the people they're dealing with, so there are certain circumstances where if it's possible, you need to preserve those confidences that the reporter has.

But on the other hand, if in the interest of justice you need that information or you can work out arrangements -- and most of them, when I've been involved in law enforcement, you've tried to work things out with the reporter where they wouldn't necessarily compromise their ability to get their own information and at the same time cooperate with law enforcement authorities.

I've been in several situations where police officers and district attorneys have had the cooperation of people in the news media without either endangering the reporter or compromising their sources.

For instance?

Oh, there have been a number of cases where they've provided information. I can remember in murder cases where they had information that might be helpful, in some cases where they wanted to go along with us in law enforcement on particular investigations. We had that kind of cooperation where they agreed not to reveal certain information about the investigation that was classified or confidential until such time as it would no longer be of help to the criminals to have that in public view. ... Also, there were situations where they shared information with us that was helpful or which verified some of the additional information that we might have.

So you became their confidential source, and they became your confidential source.

In a sense that's correct. In other words, there was cooperation, just as we had with other people in society at that time.

But in the case of the Black Panther case, which later became the Branzburg [v. Hayes] case, The New York Times and the reporter took the position that he wasn't going to help; that he couldn't give, in this case, the FBI any information, because he wouldn't be able to report anymore.

Well, that may have been the case. I think it's one of those situations whereas I say most of the time you tried to work out an arrangement with the reporter that would be mutually agreeable and would not compromise his ability to get information, or her ability, but there were times when ultimately the needs of justice were such that you had to get the information. ...

[Do you] think that reporters have the right to confidentiality to protect sources, for instance, who are not law enforcement?

I think they have to the extent it's possible, without infringing upon justice. For example, let's suppose a reporter has information that would absolutely point to the innocence of some person who was being tried for, let's say, murder. I don't think the reporter can keep that information confidential, because it prevents the court from having valuable, truthful information that could keep a person from going to prison for life. ...

Was there a kind of change that you noticed over the years taking place, let's say in the late '60s and on, where reporters no longer wanted to cooperate?

I think that's true. I think there was a change. If you look at -- well, from the '30s to the '40s into the '50s, maybe even into the early '60s, there was much greater cooperation. Most police reporters, as they were known in those days, were close friends and close confidantes really of many law enforcement people. Particularly I can think of in Oakland and in San Francisco, the areas where I worked, that there was a close relationship between many reporters and the police, and they mutually cooperated with each other.

And my sense is that reporters would cooperate also with the federal government on everything from providing cover for CIA people overseas to not publishing things when the government would tell them this is a secret or whatever it was, that it might damage the country.

I think this is generally true. I don't have as much experience with that, because I didn't get involved with the federal government, other than being in the Army and the Army Reserve, until the 1980s. And by that time, as you say, things have changed considerably.

Let me jump to the present. The president of the United States [tells] the editor of The New York Times [Bill Keller], "You're going to have blood on your hands if you publish a story about the NSA's [National Security Agency] eavesdropping operation," and The New York Times publishes anyway. What's your reaction to that?

I think it's absolutely despicable. I think it's a violation of their moral obligation to the protection of the public. It is probably one of the most serious offenses I've seen against national security in the time I've been in Washington, D.C., which is now 25-some-odd years.

Despicable.

Absolutely.

Because?

Because it endangers the people of this country. It allows terrorists to know what surveillance capabilities we had for their phone conversations. It interrupts our ability to gain intelligence that might prevent another 9/11 incident in this country, so I think it's absolutely one of the worst things that I've seen.

It's not unique, though, is it, that the press publishes what the government, the federal government, thinks is a vital secret?

Unfortunately it's not unique. It's happened in other situations with terrorism. It's happened with the [SWIFT] financial investigation program that we've had. It's happened with other programs as well. It's a sad commentary, I think, on the lack of loyalty to the country which characterizes some news institutions today. …

There's a group of reporters who cover national security that we've interviewed, and what they say is they don't publish where the U.S. fleet is or where the submarines are or how the intercept business works. They publish facts about the existence of certain programs, the legal questions around it, the ethics, let's say, about U.S. detention policies around the world. … What's wrong with that?

Well, if it reveals classified information and information that would hurt the safety of the United States and national security -- for example, in the case of the terrorist surveillance program, just the knowledge that we have such a program hurts our national security and helps the terrorists.

Don't the terrorists know that we're surveilling them? Don't they assume they're being wiretapped? Don't they assume we're looking at their money? We say all of that publicly all the time; that we're on their trail, that we're looking for their financial transactions.

Yup, but it's an interesting thing, having dealt with terrorism, having dealt with criminals over a long period of time: A lot of times, they forget about those things, or they don't pay as much attention to it. But when it's confirmed that we have this process or that process and they know how we do it, just by the revelation by The New York Times and by others of a particular program, then that gives them the information to change their tactics, to change their actions. It confirms what they might suspect, but which they don't know for sure, and therefore, they keep on with these activities.

There's no question in the case of the terrorism surveillance program, the revelation of that by The New York Times has caused the terrorists to change their procedures and change the nature of their operations.

You know that.

That's my understanding.

Of your sources.

That's right. And I'll keep them confidential. (Laughs.)

And I won't subpoena you.

All right. (Laughs.)

Because I don't have the power to subpoena. But within that, what's the recourse? If you were the attorney general now, would you prosecute The New York Times for Espionage Act violations? How would you stop it?

I don't know. That's the problem. It used to be that you could depend upon the moral character of news media, and the commitment and loyalty to the United States. Unfortunately, we've had a big change. I was a kid in World War II, but I remember it very well. As I talked to someone the other day about this whole problem of the news media and revealing classified information, revealing secrets that help the terrorists and that sort of thing, I said, "What's the difference today from World War II?"

The answer I got was pretty profound. They said, "Well, in World War II, the news media was on our side, and I don't think that's true today in the case of some people."

Well, we had censorship in World War II.

We did indeed. We had censorship, but most of it was voluntary. Most of the war correspondents voluntarily submitted their copy. They had to by law, but they were very cooperative in doing that. You had the Office of War Information which worked with the publishers of newspapers, and there was a lot of personal commitment out of loyalty to the United States that allowed or that motivated people in the news media not to reveal information that might hurt the national security. And in some cases, that's not true today.

So, because there isn't censorship in the United States today, is that why this is happening?

No, I think there's a difference. There's a difference in viewpoint among a lot of the news media today. I think in some cases we have different kinds of people, and they don't have the same integrity that we had during World War II.

They say ... reporters are not an arm of law enforcement. Reporters are not propagandists for the government. Our job is to report information. We don't do it recklessly; we think about the consequences, but we have to keep the public informed about what's really going on.

I don't disagree with those kinds of statements. But I do think that it's wrong to, first of all, obtain leaked information, and secondly, to publish leaked information, things that are highly classified secrets to the United States that affect the security of the United States and affect the national security, that endanger lives. I think that to publish that kind of information is a violation of a person's moral obligation to their country and a violation to the loyalty that ought to be there, that any citizen should have.

A lot of times other citizens other than newspaper reporters get information about things that if revealed would hurt other people, and they feel a moral obligation to keep that and not to broadcast that around. A lot of people in government have a lot of information that they could leak, but not only do they feel a legal obligation, but they feel a moral obligation not to give that to the news media, because it might hurt the national security and the national interests of the United States.

I think that that ought to be the primary criteria by which newspaper reporters and newspaper publishers determine what should be made public. …

Let me go back now. You were attorney general of the United States [in the Reagan administration].

Yes.

And before that, you were also a close counselor of the president in the White House.

Right.

Was it a problem during your tenure?

I can't remember any time that it was. I can't remember any situation where the press had information that was highly classified that was revealed. There was a lot of leaks of political information, and I think that there was a propensity of the press to concentrate on who shot who [sic] -- I say that figuratively, of course -- and who was stabbing who in the back politically. So there were a lot of leaks of that sort of thing, but in terms of national security information, I can't think of any particular instances right now. ...

CIA Director [William] Casey, at the time when you were attorney general, was very concerned about leaks, about stories about eavesdropping on the Soviet Union through undersea cables -- serious matters -- [and] intercepting Libyan communications.

I do remember Bill Casey being very concerned about the revelation by the news media of sources and methods of intelligence, because it could endanger agents or informants overseas particularly, as well as reveal to our Cold War enemies -- and we were in a war, even if it was a cold war -- about ways in which we were able to obtain intelligence.

We had some very good intelligence about the Soviet Union as well as other of their satellite organizations, and to have that revealed to the public would of course endanger national security and would have endangered the lives of people around the world.

When we ask people like [reporters] Bob Woodard or Sy Hersh or Jim Risen in the case of the NSA eavesdropping story, "Who are you to reveal national security secrets?," their answer is: "We're the press, and we have a right to inform the American people. Our critics basically don't like what we report, but they have never shown us that we've done any real damage to the national security of the United States."

I think there's no doubt that there has been damage. For example, in the early 1970s when you had this infamous Church Committee, [the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, named for its chair, Sen. Frank Church (D-Idaho), which investigated the CIA and FBI post-Watergate], I remember some magazine -- I don't remember whether it was Look or Life, but one of the magazines plastered the pictures of about 20 or 30 agents who were working overseas, intelligence agents, on the cover of the magazine. Certainly revealing that information endangered them, but more than that, endangered their networks of informants in those countries.

As a result of that and the revelation by the news media of a number of other agents during that period, they literally disrupted networks of intelligence informants throughout the world, which hampered our intelligence for two or three decades after that.

Can you remember during the Reagan administration, when you were an official, was there a particular operation that was compromised or someone who lost their life or something that was the result of something being published?

Well, this was the '80s now. This was within 10 years or 15 years of the revelations during the 1970s, and I remember how bereft we were of informants in many parts of the world because of the networks that had been broken up during the 1970s as a result of information that had been leaked or had been published, which primarily came through these congressional committees that had been involved in these so-called investigations, but which really hampered our intelligence effort.

Now let me take you to the present, or closer to the present. In July of 2003, Robert Novak publishes a column and identifies [Valerie Plame], the wife of [former Ambassador] Joe Wilson -- the man who had said the president's information was bad when he gave his State of the Union address -- as a CIA operative. That was a leak, right, from inside the government, that information?

Yes.

Should the people who perpetrated that leak be prosecuted just like anyone else?

Well, the answer in this case, curiously enough, is no. Had she in fact been a CIA operative within the meaning of the law that prohibits the revelation of that information, then the person should have been prosecuted. But as it turns out, the law itself provides certain requirements: number one, that a person has to be undercover within five years; they have to be either overseas or in some kind of an undercover assignment; they have to be someone that government is trying to conceal their identity, and so on. There are a series of elements of the crime.

In this case, those elements were not satisfied. And it's one of those peculiar things where, hard to believe, but I don't believe the reporter in that case could be prosecuted or should be prosecuted, because there was no crime committed.

Or the leaker.

Or the leaker, because there was no crime committed. That's why I think you have some phony prosecutions going on at the present time.

I can hear someone of a liberal persuasion sitting out there saying, "Well, Ed Meese doesn't like the leaker when the leaker provides information that's embarrassing to the government; that, let's say, is coming from a contrarian point of view. But when it's from the White House, it's OK."

No, not at all. If the leak is from the White House and a person has leaked classified information which constitutes a crime, they ought to be prosecuted just as much whether it's Republican, Democrat, whoever it happens to be. It just happens that in this particular case no crime was committed, and that's why the person who hasn't committed a crime shouldn't be prosecuted. …

So this whole Valerie Plame affair -- and when we go on the air, the trial, I assume, will be in progress -- sort of the result of unintended consequences?

It's the darnedest thing. As you and I have discussed, there have been very few prosecutions of leaks, and it's amazing to me that the one prosecution we've had in recent years of leaks had to do with a case where no crime has been committed. …

But shouldn't the White House officials involved understand that when they're talking to FBI agents, when they're talking to the grand jury, that it doesn't matter whether there's an underlying crime; they have to tell the truth?

Oh, absolutely. And whether they told the truth or didn't tell the truth is something that will be determined in the trial. But the thing is, there would never have been an investigation, there never would have been an inquiry, there never would have been a position or a situation in which a person was in jeopardy, as this particular individual is being accused, if the prosecutor had not determined in the first, as I say, 48 hours -- certainly in the first week -- that no crime had been committed. ...

I've interviewed FBI officials who have supervised leak investigations, and they say one of the really frustrating parts of that is they get the complaint, but then of course the only person who knows who leaked it is the reporter, and then they would never get permission from the Justice Department, from the attorney general, to actually subpoena the reporter.

Yeah, I don't remember any cases where -- there may have been one or two -- where I gave permission to subpoena a reporter. I don't remember any offhand. So they must have been very rare, if at all.

I think that's right. It ought to be a case which is very important, where there's a serious crime committed, and where there's no other way to get that information before a court or before a grand jury and where, in the absence of the truth being revealed to a grand jury or a court, a grave injustice would be done. So I think it ought to be very rare. But when you get down to the point where justice cannot be done without the information, then I think there's an obligation on the reporter to provide the information. ...

There are two reporters facing jail in San Francisco who wrote stories about the grand jury investigations [into allegations of steroid abuse in baseball]. They were subpoenaed as a result of that, and they're facing jail right now. The Justice Department issued subpoenas for them. Is that the kind of circumstances where you would issue subpoenas?

I'm not sure that I would. It would depend on the circumstances. I don't know enough about that particular case to tell you, because I don't know all the facts of the case. ...

In the BALCO [Bay Area Laboratory Co-Operative] case, as it's called, the reporters in question got their hands on the grand jury transcript which allowed them for the first time to confirm publicly that [the San Francisco Giants'] Barry Bonds and [the New York Yankees'] Jason Giambi and other players were actually before the grand jury and report their testimony. The case was over in terms of the main defendants are already adjudicated; they went to jail. The reporters then receive subpoenas to testify. They refuse to testify, and they're facing jail. It doesn't seem like life or death is involved or national security is involved.

No, but here's what is important; that is, they were asked to testify, if I understand correctly, about where they got the information and got the secret grand jury testimony. Isn't that the case?

Right.

And that is a most serious crime. See, the reason for the confidentiality of grand jury proceedings is many times, people are or cases are brought before the grand jury, and it turns out that no crime has been committed. Therefore that remains secret so as not to hurt the reputation of people who might have been thought to be possibly criminals, have committed a crime. But it turns out that the grand jury did not find the evidence to indict them.

The principle of keeping secret grand jury testimony is a protection of the average member of the public and is absolutely sacrosanct. The idea that someone would leak grand jury information is a very serious crime, because it threatens the reputation and the good name of people in society, innocent people.

As a result, the desire to find out who is leaking grand jury information is a very serious crime. Therefore, it is entirely appropriate that reporters who got the information and would have information about a serious [crime] should be required to testify before the grand jury. …

Even if the main criminal case is over?

Even if the main criminal case is over. It's not a matter of the criminal case. The matter has to do [with] who leaked the secret information.

But even in the situation where the president of the United States has told the two reporters personally at a dinner in Washington they did a great service to the public in publishing what they published?

Well, I would disagree with the president. I don't think he understands the reason for the sanctity of the grand jury, if in fact that's what he did. ...

... The unusual thing is that Mark Corallo, who used to work for [former Attorney General] John Ashcroft [as director of public affairs], has given an affidavit and gave us an interview in which he says that he doesn't understand what this Justice Department is doing in that case; that it's a violation of the guidelines, the history of the Justice Department's involvement in the issue of subpoenaing reporters.

Well, I'm not sure that's correct. I think that leaking information or revealing information from grand jury testimony is a very serious crime and was regarded as a very serious crime when I was there. If this had happened under those circumstances when I was there, probably we would have permitted the subpoenaing of newspaper reporters, if it was clear that was the only way we could find out who it was who had access to grand jury information and then leaked that in violation of the law. ...

Have you been a source for reporters?

Oh, I'm sure. Oh, absolutely. I've never been a source of leaking information that shouldn't be disclosed.

And never revealed anything that wasn't public?

I've revealed things that weren't public, but nothing that should not have been revealed. ... In other words, I almost never gave information to one reporter that I wouldn't give to a whole bunch of reporters or wouldn't have answered a question in a news conference. As a matter of fact, I was somewhat, I won't say notorious, but certainly consistently thought of when I was in the White House as someone who didn't leak. ...

In the Valerie Plame case, the prosecutor distributed waivers, which had never really been done before in the White House that I know of, to everyone in the White House and said, "You release any reporter that you've talked to of any vow of confidentiality." Would you have signed such a waiver if you were in the White House?

Well, I probably wouldn't have leaked any information to a reporter to start with, so I probably would have signed such a waiver in the sense that there was no information that I'd give to anyone that I would have any hesitation about having that information revealed.

But is that the kind of thing, those kinds of waivers, is that really a fair way of dealing with things, in the sense of if you don't sign it, it looks like you're guilty, right?

I think you'd have to look at the situation. Frankly, I don't feel that a waiver is necessary, because I think if there was relevant information in a serious case that the reporter should have to testify anyway, so I wouldn't think a waiver would be necessary for a reporter to testify. So I'm not sure that I would use a waiver if I was a prosecutor in a particular case. ...

Let me just read a letter from Bill Casey. "Dear Ed, I know you share my concern regarding the increasing threat to our national security posed by unauthorized disclosure of classified intelligence information that compromises our intelligence sources, both human and technical; has placed lives in jeopardy; and rendered expensive technical collections systems ineffective. We simply must restore discipline to the handling of sensitive information." But you never did really. You didn't prosecute anyone in the press.

We didn't prosecute anybody. I don't know [if] there was any basis for prosecuting anybody in the press. I shared Bill's concern. We did take steps. We talked … about the possibility at that time of using the polygraph in regard to some officials in the government and so on. But as I remember, we could not zero in close enough to get the right people that we felt that we had, whether it's in the news media or among officials in the government, to actually take any steps. …

Well, Bill Casey went on a kind of mission for a while. He walked into the newsroom of The Washington Post. He talked to [then-executive editor] Ben Bradlee and others, and he said: "You have a story about Soviet underwater cables that we're tapping into. You have a story about Libyan intercepts that we've done. We don't want those stories published." And they did anyway.

Yeah, and I think the question was -- I would say this -- whether the danger was sufficient enough and we had enough information to go ahead and subpoena reporters or to undertake a grand jury investigation. I don't remember all the details, but I assume at the time we decided against it.

Yeah, apparently you did.

Yup.

Which leads to my FBI guy saying, "Why do you bother having these investigations?"

Well, I think that you know when you have a clear-cut case, as you did in the Barry Bonds case apparently, then I think it's appropriate to go after it. In these cases, I'm not so sure that we had that. Sometimes it's a judgment call, because I think we're all reluctant to interfere with people in the private sector, in the news media, on these things unless it is important and unless there's a good chance of being successful in the ultimate prosecution.

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posted feb. 13, 2007

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