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Subpoenas' impact on in-depth reporting

Randall Eliason

Former prosecutor

Randall Eliason

There has been a real flurry of high-profile cases recently, and I'm not sure what you attribute that to. But the fact remains that, in general, these cases are still extremely rare; we're talking about a handful of cases out of the tens or hundreds of thousands of reports that are filed every day by journalists.

Another thing we have to keep in mind is that there's just a lot more media now. ... In the time Branzburg was decided, we had three TV networks and newspapers. Now you've got cable and satellite and the Internet and 24-hour news. If there are many, many more reporters working, then you would expect to see an increase in the numbers. ...

Nicholas Kristof

Columnist, The New York Times

Nicholas Kristof

There's been a trend in recent years of prosecutors subpoenaing reporters to force them to identify sources. ... That is going to put us in a real bind. ... That goes to the heart of how we get information in this country and other countries. We talk to people and promise them confidentiality, and as a result, we get information. That is how journalism works. If we can't promise confidentiality, and if whistleblowers can't feel confident they can supply information securely and have their identities preserved as secrets, then they're not going to give us information, and it will be a lot harder to get information out there to the public.

If you look at great stories that have been crucially important for the public, whether they be the Pentagon Papers or reports of Abu Ghraib or NSA [National Security Agency] wiretapping, all those depended on this system of promising confidentiality. It's a lousy system, because it does allow people with axes to grind to present information that often isn't comprehensive, but it's the best we've got, and I'm afraid that in the long run, the leak investigation is going to profoundly alter and undermine that system.

What was your reaction when Time magazine turned over [reporter] Matthew Cooper's notes?

I confess I was actually one of the few journalists who had some sympathy with [then-editor-in-chief of Time Inc.] Norm Pearlstine in that situation. It seemed to me a very difficult position. I can see that an institution and a company does have some formal obligation to obey the law. It seemed to me that there was a certain amount of merit to his argument. I'm not sure I would have done the same thing, but it seems to me that there is a difference between an institution and an individual. As an individual, I have a sacred obligation to protect my sources; I'm not sure that the same is necessarily true of a corporate entity.

Lance Williams

Reporter, San Francisco Chronicle

Lance Williams

It's an intellectual exercise to think about what a reporter would do in today's environment if presented with that opportunity. You like to think we'd go for it again, because these stories were so important and so newsworthy. But some editors have publicly said that they're pulling off certain kinds of investigative reporting because of the threat of subpoena. I know the editor of the Cleveland Plain Dealer made some public comments about a big state scandal about a year ago, saying, "Well, we're not printing something now because we're afraid of getting mixed up in one of these subpoena messes." ...

We've been looking at a lot of other cases. They're mostly national security cases: Wen Ho Lee, [the Los Alamos scientist accused of spying for China]; the [Valerie Plame] leak investigation and the NSA [National Security Agency] eavesdropping case; the AIPAC [American Israel Public Affairs Committee] case. How does yours compare?

We're in a category by ourselves, I think. We're a sports story; there's no national security issue. Our case is long since over; defendants have pleaded guilty and paid their price to society. It's just a different dynamic. ...

I think if they can get a subpoena sustained in a case about sports doping, they're going to get one anytime that they want. And I think we're going to see this as a routine matter among reporters trying to cover the federal government. I just don't see how we're going to cover the federal government if we can't have confidential source relationships. ...

Bob Woodward

Reporter, The Washington Post

Bob Woodward

The consequences of all these people testifying in the Plame case and then the special prosecutor, and now more subpoenas going out, and you have the BALCO case in San Francisco. This is happening in a time period where news organizations are being pressured financially as well. So is this a new crisis situation?

No, it's not a crisis. The remedy is a better product. Look, in the newspaper business and reporting business, we produce stories that people say, "That's important; that's significant."

We have to make ourselves more useful and do better and dig harder, and then you change the political climate. People will say: "Ah, the press -- oh, [it's] useful. We know a lot about the Iraq war or about terrorism or steroid use in baseball because of the press." So just keep at it and--

-- go to jail. But the next guy should just keep reporting; get more people to take risks?

Yeah. We live in the risk environment as reporters, so that's not worrisome. Hopefully people won't go to jail. Hopefully they will be aroused, ... and public policy will shift. I think [at] the end of 2006, the climate has shifted.

The problem in American society now is not the press. If anything, the public wants the press to be more aggressive, tougher, and dig deeper. So that's exactly our job. ... The press shouldn't become so self-absorbed that if there's a barrier in the road, or there's a snowstorm, or there's a grand jury investigation, we flee from the contest.

There's always been that potential contest really, and it's not that we welcome it; it's part of the price of doing the job. I'm not going home and wringing my hands and saying, "Oh my God, I can't build relationships of trust with people." I can. And that's the mother's milk of this business, as you well know.

You don't change the way you use telephones?

Sure, but it's a minor inconvenience And if this is part of the context in this era, fine. I think it will go away, because the reason the First Amendment has survived and been by and large embraced -- sure, people get mad at reporters, but basically, it works.

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

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