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Journalism and the CIA Leak Case

Questions have been raised about whether a law should exist to shield journalists from revealing sources. Many are concerned confidential sources will no longer trust journalists who fear jail time. Following a background report, four experts discuss the CIA leak investigation's effects on journalism.

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    A federal grand jury sitting in the District of Columbia returned a five-count indictment against I. Lewis Libby.


    In announcing the indictment of Lewis "Scooter" Libby last Friday, special counsel Patrick Fitzgerald made clear how much his investigation hinged on off-the-record conversations the former vice presidential chief of staff had with journalists, and the profoundly different recollections of those contacts.

    The indictment alleges that Libby lied to both the F.B.I. and the grand jury when he claimed he'd learned the identity of undercover CIA Operative Valerie Plame Wilson from Tim Russert of NBC News in early July 2003. Libby also claimed he'd passed information from Russert on to Judith Miller of the New York Times and Matthew Cooper of Time Magazine.


    It would be a compelling story that will lead the FBI to go away if only it were true. It is not true, according to the indictment. In fact, Mr. Libby discussed the information about Valerie Wilson at least half a dozen times before this conversation with Mr. Russert ever took place, not to mention that when he spoke to Mr. Russert, Mr. Russert and he never discussed Valerie Wilson.


    Russert, who categorically rejected Libby's account of their conversation, spoke of his bewildering situation on CNBC over the weekend.


    I must tell you, it is a weird feeling sitting covering a story and hearing your name coming out of the mouth of a special counsel, "Tim Russert."


    Russert, in addition to Glenn Kessler and Walter Pincus of the Washington Post, gave limited testimony to Fitzgerald last year after short-lived efforts to fend off subpoenas.

    Two other journalists, Miller and Cooper, took their argument that journalists' conversations with sources are protected by the First Amendment, all the way to the Supreme Court, but lost.

    Cooper then cooperated with Fitzgerald after his source, presidential adviser Karl Rove, released him to speak. Rove remains under investigation.

    Miller refused to talk and spent 85 days in jail before saying that her main source, "Scooter" Libby, had released her to testify a month ago.

    Robert Novak, the columnist who first publicly identified Valerie Plame as a CIA operative, has refused to comment on whether or not he cooperated with the investigation.

    On Friday, special counsel Fitzgerald explained why he went to such lengths to compel the journalists to testify.


    I do not think that reporters should be subpoenaed anything close to routinely. It should be an extraordinary case. But if you're dealing with a crime– and what's different here is the transaction is between a person and a reporter, they're the eyewitness to the crime.


    Reporters may be back in the unwanted spotlight again soon enough, as star witnesses for the government during the trial of Lewis Libby.

    And now to a discussion of some of the issues arising from this case. Doyle McManus is Washington bureau chief for the Los Angeles Times. Robert Ray led several federal investigations involving White House personnel as an independent prosecutor. He's now in private practice as a criminal defense attorney. Devereux Chatillon is a First Amendment lawyer in private practice and former in-house counsel for ABC News and the New Yorker magazine. And Jeff Jarvis is author of weblog and media columnist for the Guardian Newspaper of London. Next fall he becomes director of the new media program at the City University of New York's Graduate School of Journalism.

    And welcome to all of you.


    And starting with you, Doyle McManus how unusual is this and, as a working, practicing journalist, how are you troubled by watching what's happening with your colleague's involvement in the case?


    Well, Jeffrey, this is unusual. It's not the first time that reporters have been sought by a prosecutor as witnesses in a trial. It won't even be the first time if the reporters involved have to testify that that's ever happened. But it's quite unusual and here's why I think most journalists are troubled.

    Reporters would like to be independent watchdogs. We would like to find things out that the public wants to know. And for that to happen, we want people to feel free to talk to us without worrying that their interviews with reporters will end up in a pipeline going straight to the police or a prosecutor or a courtroom. And when that is the outcome of a case, even a case as unusual as this, it may have the effect of warning people you better not talk to reporters. It may have a chilling effect. And so that's why we're troubled.

    That's why reporters tend to fight these requests when they come in. That's also why a lot of journalistic organizations would like there to be a federal shield law to make it harder for prosecutors to do this rather than easier.


    Robert Ray, from the prosecutor's perspective, why push the reporters so hard and where would you draw the line, the balance between the law enforcement needs and the rights of the journalists to do their job?


    I think Mr. Fitzgerald attempted to draw the right line. He made a point, a clear point of distinguishing between routine versus not unusual but extraordinary. This really is the extraordinary circumstance where the crime that he was investigating necessarily involved the disclosure or looking at the disclosure of classified information to a reporter and more than one. And those reporters were witnesses to the crime that he was charged to investigate.

    Now, that's an unusual circumstance beyond the routine case. Certainly no one is suggesting that the privilege — the reporter privilege and the privilege that exists between that reporter and his or her source should give way in every case.

    This was the extraordinary case where you also have legitimate law enforcement interests in connection with ferreting out the potential of the commission of a crime to actually, you know, do something here that is extraordinary but remember that the privilege is a qualified one, not an absolute one.


    Dev Chatillon, as a matter of First Amendment law, how do you define the privilege? How do you see what happened in this case?


    I think I agree with both Mr. McManus and Mr. Ray. I think this was an unusual case. And, in fact, as it's been charged in the indictment, Mr. Libby supposedly lied about conversations with reporters to, in some way, protect or shield other conduct he didn't want to come forward with. That's the allegation, anyway. That's unprecedented. I've never heard of that.

    From a First Amendment standpoint, the court decisions in this case, I think, have been very troubling and have shown a sort of fault line, if you will, in the protections given pretty routinely to reporters in both federal cases and certainly by state law in most all of the 50 states.

    That's one of the reasons there's been a lot of activity in the legislature in Congress to try and get a shield law passed to make sure that in the weighing process between the needs of the prosecutor, the needs of the court system and the needs of journalists to report and protect their sources that the right balance is able to be accomplished.


    And, Jeff Jarvis, are you troubled by seeing reporters and their work playing such a central role in this indictment?


    Well, I'm troubled by seeing reporters used in any case and allowing themselves to be used. But now that I'm kind of outside the journalistic palace and I'm blogging, I'm a citizen journalist, I see a different issue here, which is when we talk about shield laws, the issue becomes that we have to define who a journalist is. And that gets very dangerously close to certifying or licensing journalists, which we don't want to do because then the government can give the licensing; it can take it away.

    You could instead try to define the act of journalism and say well, anyone can, in fact, as we can today, perform an act of journalism. Anyone can find out something; anyone can publish that to the world now.

    The problem is when it's a privilege for anyone, it's a privilege for no one. And if Tony Soprano could have a blog, then he could claim the same privilege as anyone else.

    My problem now is I really honestly don't know how to construct this in such a way that covers our new world of journalism and our new world of media. And what I see here is the various parties used the journalists.

    The White House probably used journalists. The journalists routinely use other people. The prosecutor can now use both. And it's a very uncomfortable position all around and for the citizen journalists, we don't have the million-dollar legal war chest that the New York Times gave to Judy Miller, and so that makes it doubly troubling.


    Mr. McManus, I have seen some commentary — picking up on what Mr. Jarvis just said, that this case really raises questions about how Washington journalism is done — that is, the relationships between reporters like yourself and sources, high officials, the kind of deals that they make amongst themselves. Do you see it that way?


    It does, and that's why — I mean, it's the old adage that good cases make bad law. The facts here are terrible. As a journalist, if I ever wanted to look for a case on which to make my stand and proclaim why it's important for us to have this privilege and why I happen to believe that it's important for bloggers and citizen journalists to have the privilege as well, this is the last set of facts that I would want to stand on because nobody looks very good here.

    Mr. Libby, the vice president's chief of staff, doesn't look good. The journalists who dealt with him don't look good. But that's the problem with the First Amendment. It covers scoundrels as well as heroes.


    But after this case or where we stand now, can you look a source in the eye and say "Talk to me and I will not betray what you've said."


    I can look a source in the eye and say "Talk to me and I will go to jail to protect you and I will do everything I can to protect you. But I know and you know what we've just seen. I can't honestly promise you that that will cover every circumstance in every case."

    And in a sense, that's why I think it is important that this remain an unusual case. What I'm worried about in a sense is not just this individual unusual case but the fact that other prosecutors have been going down this path — that there are civil suits out there, Privacy Act lawsuits against the government in which civil plaintiffs are bringing — calling journalists as witnesses.

    We're on a slippery slope that leads to the more regular use of reporters as witnesses and that's the real danger.


    Well, Mr. Ray, do you see the slippery slope — will prosecutors look at what's been happening in this case and change their tactics?


    I hope not. I mean, I think on the one hand you heard the signal from Mr. Fitzgerald "Don't take from this investigation that this should be used in the routine case." But second, I think that fair point to be made, this CIA leak investigation has been carried further than any previous leak investigation into the heart and center of the First Amendment.

    So, you know, Mr. Fitzgerald made very apparent that while he was struggling with that balance of legitimate First Amendment interests and the interests of pursuing an investigation aggressively in order to learn the facts, that's a difficult balance to strike and you have an enormous amount of power in the hands of a prosecutor who you entrust to make the right call and it doesn't necessarily mean that every prosecutor's going to make the right call in every situation.

    What I will say, not to carry the analogy too far, maybe the balance was best struck here by Mr. Novak and his attorneys. I think there are ways for reporters to get what they need to do in terms of protecting their sources and also to provide information legitimately sought by a law enforcement investigation.

    And I think — my sense of how he handled it is we don't even know whether or not he testified in the grand jury. We don't know whether he talked to law enforcement agents. We don't frankly know precisely who his sources were, and with the protections that are afford by the federal rules of criminal procedure, specifically 6-E which makes grand jury information secret, he was able to navigate a course through this I think that protects sources on the one hand and the First Amendment interests involved and on the other provides law enforcement with the information that it needs in such a way as to, you know, not give up the sources, so to speak.


    Well, Ms. Chatillon, pick up on that because you advise reporters. What are you telling them now about the stories they write, about the relationships they have with sources, about the protection that they can offer?


    The advice has not changed all that much. I think I share with Mr. McManus the concern about the impact the publicity of all this has on sources who may or may not come forward because, remember, the press has no subpoena powers, it's only the persuasive power of a reporter who can get a whistleblower or other person who has knowledge of something the public should know about to come forward.

    And the advice has always been good journalism making better law, only promise confidentiality when you have to. Minimize the use of confidential sources in what you publish mainly because it's better for the public to understand whom you're talking to, why they're talking to you, what their motives are, the limits of their knowledge.

    The more information you have and can convey, the more powerful what it is you're publishing. That hasn't changed. It also makes it easier if you do come into one of these unusual crunch situations to try and protect the source because you've really minimized what it is that you have from confidential sources.

    I will also say in regard to Mr. Novak, the problem is we don't have a clue who his sources were, what they told him, what he promised them. I think for certainly Mr. Cooper and Ms. Miller, had they not fought those subpoenas and then this indictment had come out and they had simply voluntarily given up their confidential sources to the prosecutor, it would have been very tough for them to continue as reporters at all and very tough for their organizations to continue.

    So I'm not sure the Novak situation will really work for most reporters.


    And, Mr. Jarvis, going back to this notion of Washington journalism being on trial here, we've talk talked to you in the past about anonymous sources, there's a lot of issues we've raised near this discussion. Do you see changes that can be made, that need to be made right away out of this case?


    Well, yes. I think we have to take responsibility as journalists that we have abused and overused the whole notion of anonymity. We allow sources at all levels, anonymous confidential to keep their secrets and in some cases lord knows that is necessary to get the story that's right for society but certainly not in the vast majority of cases where we use that.

    You know, it's not our job as journalists to keep secrets. Wherever possible we should be telling what we know when we know it. That is our essential profession.

    So to find ourselves in the position where we now must keep secrets is always going to be uncomfortable and wrong. There is a new ethic of transparency that I see online that is demanded of the citizens who can now publish that we are transparent with each other and we expect journalists to do so likewise.

    But, similarly, it's also easier to keep a secret now for anyone. If Deep Throat were operating today he could, as I've said in the past, have a blog and his anonymity wouldn't matter because if he got the secrets out, someone else could look into them.

    Part of the problem here is we as journalists are addicted to our scoops and the reason we keep the secrets is because it's our story and our scoop. That day may be changing thanks to the Internet.


    Mr. McManus, we have just about 30 seconds here. Let me end with you. Pick up on that. Do you see changes coming that need to take place? Do you see journalists actually responding to this case?


    I do see journalists responding to both this case and to the points Jeff Jarvis just made in part– in large part because our readers are losing trust in what we do. And to repair that trust, to be able to fulfill the role that we have assumed and some people would say we've arrogated to ourselves, we have to be more open, we have to be more transparent, we have to rely less on unnamed sources and when they have to be unnamed, we have to give the reader some sense, the viewer some sense, okay, where's this person coming from?

    What ax is being ground here? That's going to be uncomfortable. It's going to be hard. You haven't seen a lot of it. We're working on it bit by bit. If we don't do better, we are going to lose what we need keep operating.


    Okay, Doyle McManus, Robert Ray, Devereux Chatillon and Jeff Jarvis, thank you all very much.