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The prosecution's tactic of using waivers

Floyd Abrams

First Amendment attorney

Floyd Abrams

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."

 
Lucy Dalglish

Executive director, The Reporters Committee for Freedom of the Press

Lucy Dalglish

That's another thing that we can talk about perhaps a little bit, about these Justice Department waivers that keep being dropped, where you get everybody in a department who's a potential source to sign a waiver saying, "If a reporter ever promised me confidentiality, I hereby revoke that; I hereby absolve them of that obligation."

And that's coerced, because if you don't sign it, you're out the door.

Yeah, you have a choice: You sign it, [or] you're without a job. And Judy, I know, felt very, very strongly that there was really no way someone could do that uncoerced. Of course ultimately that was inconsistent with the decision she ultimately made.

 
Len Downie

Editor, The Washington Post

Len Downie

... Did you feel that the kinds of releases that the special prosecutor, Mr. [Patrick] Fitzgerald, got from the White House [were sufficient]?

Our lawyers talked to -- no, that would not have been sufficient. Our lawyers talked to lawyers for the individuals involved to satisfy us that the release was voluntary, personal, directly from that individual, specifically about what it was that we were asked to testify about. A broad, general release would not have been acceptable to us and wasn't acceptable to us. ...

 
Mark Feldstein

Professor, The George Washington University

Mark Feldstein

... Waivers may pretend to be voluntary, but they're really not. When a government official is presented with a waiver and [told], "Here, sign this if you like," they recognize if they don't sign it, it's tantamount to an admission that they themselves have been the source. So you are requiring people, in essence, to sign away their First Amendment rights to free speech. ...

 
Bill Keller

Editor, The New York Times

Bill Keller

My reaction to the waivers was that somebody's come up with a novel and really troublesome strategy for chilling sources, and that if we butt into the idea of these blanket waivers -- that everybody who goes to work for the federal government or Enron, for that matter, signs a blanket waiver as a condition of employment -- if we bought into that, we could very well be collaborators in major chilling of the flow of information. ...

But it worked with your colleagues at NBC, at The Washington Post, initially with Mr. [Matt] Cooper at Time magazine. ... Your colleagues weren't united in your resistance.

That's true. That's also, I think, a factor of what I said before, that this was not an ideal case to fight. It was just not a pretty picture all around, and I think that contributed to the lack of solidarity, the lack of a united front. ...

 
Nicholas Kristof

Columnist, The New York Times

Nicholas Kristof

In this Plame investigation, there's been a new wrinkle with these blanket releases, getting sources to sign waivers. What is your take on that?

If a source genuinely waives their anonymity, then of course you can come out and say who they are. My interest as a reporter is to get information to the public, and if a source no longer wants anonymity, then that waiver is genuine, and I should say who it is. But if the government goes to a bunch of people and has them all sign waivers and forces them to do so, that's not a genuine waiver, and I don't think that we in journalism should treat them as such.

 
Edwin Meese

Former attorney general

Edwin Meese

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. ...

 
Judith Miller

Freelance reporter

Judith Miller

In this case, there was something that no one counted on called waivers. When did you hear about them, and what did you think about them?

When I first read that government officials had been asked by the administration, by the president and by [special prosecutor] Mr. [Patrick] Fitzgerald to sign blanket waivers, I said these people aren't signing these documents willingly and voluntarily. If your boss comes to you and puts a piece of paper in front of you and says, "Sign this or you're out of a job," do you really have much of a choice?

I felt that those blanket waivers, what I called assembly-line waivers -- anonymous, impersonal -- did not really relieve me of the pledge I had made to my source. I would have liked to have accepted it; I just couldn't. ...

 
William Safire

Columnist, The New York Times

William Safire

If a confidential source issues a blanket release as in what happened in the White House recently, are you still obligated as a reporter to protect their anonymity?

No. Blanket releases are phony.

So you're still obligated to protect them.

Yeah, unless you can look them in the eye and say confidentially, "Are you really truthfully releasing me, or is it something that you're doing because there's a gun to your head?"

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posted feb. 13, 2007; last updated feb. 27, 2007

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