Defends confidentiality for journalists
Mills, Nicolaus
AS I WATCHED on the evening news a frail, but clearly pleased, W. Mark Felt, the former number two official of the FBI, enjoying public recognition for the role he played as "Deep Throat" in...
...We can't ignore the slippery slope that connects the protection of confidential sources and the misuse of anonymous sources...
...As a nation, we can weather a misleading story and be confident that, if important enough, it will be exposed by rival journalists...
...100 n DISSENT / Summer 2005...
...In the end, however, stories gone bad, whether the result of honest mistakes or dishonest reporters trying to gain an edge in this era of the twenty-four-hour news cycle, do not make the case for denying journalists the right to protect their confidential sources...
...If we guarantee the former, we do much to enable the latter...
...AS I WATCHED on the evening news a frail, but clearly pleased, W. Mark Felt, the former number two official of the FBI, enjoying public recognition for the role he played as "Deep Throat" in bringing the Nixon administration to justice, I was glad that he decided not to take his secret to the grave...
...But in federal courts, as First Amendment lawyer Floyd Abrams concedes, the right to confidentiality is murkier...
...Interviewed on the day Felt's identity as Deep Throat was disclosed, Charles Colson, the special counsel to Richard Nixon, who served seven months in prison for participating in the Watergate cover-up, told the press Felt should not have been "sneaking around dark alleys and talking to reporters...
...For refusing to reveal to the government their knowledge of the sources who in 2003 leaked to the media that Valerie Flame, the wife of Bush war critic former ambassador Joseph Wilson IV, was a CIA operative, reporters Judith Miller of the New York Times and Matthew Cooper of Time face jail sentences...
...Thirty-two years later, those who went to prison for the role they played in the Watergate conspiracy are still angry with Felt...
...There, the precedent is the 1972 Supreme Court case of Branzburg v. Hayes in which, in a five-to-four opinion, the justices ruled that reporters appearing before a federal grand jury do not have the same protection for their sources that they do in state courts...
...The practice of not revealing sources goes back to 1871, when H. J. Ramsdell of the New York Herald Tribune told the Senate he would not reveal how he had obtained material that was supposed to be secret...
...In 2004, Dan Rather and CBS, the network that, along with Seymour Hersh of the New Yorker, led the way in exposing the torture at Abu Ghraib, were forced to apologize for a story, "President Bush's National Guard Service," on 60 Minutes II that relied on bogus documents, provided by a confidential source, showing that, decades earlier, while a member of the Texas National Guard, Bush received favored treatment...
...More recently, experienced reporters, by relying on confidential sources that they insisted on protecting, have gone through experiences ethically different but journalistically as embarrassing, as Cooke's...
...The least our country owed him were a few moments in the national spotlight...
...It was also a stark reminder of how today's reporters need the legal right not to disclose the names of their confidential sources...
...detention center at Guantanamo Bay sought to rattle Muslim prisoners by flushing a copy of the Qur'an down the toilet...
...Abrams, who is representing Miller and Cooper, believes that there may be wiggle room in Branzburg v. Hayes because of the balancing test that Justice Lewis Powell, who cast the DISSENT / Summer 2005 • 99 NOTEBOOK fifth vote, insisted was necessary in the separate, concurring opinion he wrote...
...Mark Felt saved the nation from a Nixon administration that believed it was above the law, and although we may have to wait a long time for a second Nixon administration, it is not unreasonable—as the revelations by confidential sources of the Abu Ghraib prison torture and the treatment of those held in Guantanamo Bay show—to believe that unless reporters can protect their sources, we could lose one of the most important checks and balances we now have against unfettered government...
...We can only imagine how ruthlessly Colson and the Nixon White House staff would have treated Felt if he had gone public in 1973...
...But Abrams is not sure of what will happen to his clients...
...NICOLAUS MILLS is a professor of American Studies at Sarah Lawrence College and the author of Their Last Battle: The Fight for the National World War II Memorial (Basic Books...
...THIS IS NOT to say that we don't pay a price for granting reporters the right to protect their confidential sources...
...But the recognition of Felt's achievement did not just speak to the past...
...Similar stories of Qur'an abuse had been published elsewhere, but in a follow-up column, Newsweek editor Mark Whitaker acknowledged that in this particular case the magazine's source "couldn't be certain" of the Qur'an incident, which had been the basis of its controversial Periscope report, "Gitmo: SouthCom Showdown," by Michael Isikoff, the veteran journalist who had been so accurate and careful in his 1998 expose of the Bill Clinton–Monica Lewinsky affair...
...The Washington Post is a case in point...
...Less than a decade after Woodward and Bernstein broke the Watergate story, the Post was humiliated when Metro reporter Janet Cooke, young and ambitious like Woodward and Bernstein, took advantage of the right to confidential sources that her city editor, Milton Coleman, had given her and turned in an invented story, "Jimmy's World," about an eight-year-old heroin addict...
...This year, in a more deadly incident that is blamed for setting off anti-American rioting in Afghanistan, Newsweek was forced to admit that it could not confirm a story on how interrogators at the U.S...
...journalists were imprisoned, the longest for five and a half months, for refusing to divulge sources...
...According to the Reporters Committee for Freedom of the Press, between 1984 and 2000, eighteen U.S...
...The same cannot be said for the secrecy surrounding a Watergate or an Abu Ghraib...
...It is not clear that they will win their cases, which are now on appeal...
...Yet today, the right of reporters to protect their confidential sources, as Bob Woodward and Carl Bernstein did when they covered Watergate for the Washington Post, is at risk...
...The Post was forced to give back the Pulitzer Prize that Cooke received in 1981 for feature writing and devote enormous space to explaining how its editors, who had put so much trust in Woodward and Bernstein, had been burned when they did the same for Cooke...
...Bad stories only make the case for better fact-checking and less focus on scoops...
...It is hard to think of a better reason for tilting Justice Powell's balancing test in favor of reporters and their confidential sources than Watergate...
...There are currently laws or court decisions in forty-nine out of fifty states saying that journalists in all, or most, cases may refuse to reveal their confidential sources...
Vol. 52 • July 2005 • No. 3
