Sources of Frustration

Despite the valid news provided by confidential sources, courts continue to chip away at the federal reporter’s privilege

From the Summer 2004 issue of The News Media & The Law, page 32.

B y Kirsten Murphy

The leak of an undercover CIA officer’s identity to several journalists last summer created a furor in Washington, D.C., and ultimately prompted an intense Justice Department investigation led by a special prosecutor. The “Plame leak” controversy began last July when columnist Robert Novak revealed undercover officer Valerie Plame’s identity and claimed his sources were “two administration officials.” The investigation could lead to federal charges if the leakers knew Plame was undercover at the time t hey revealed her identity.

The case highlights an issue that has appeared in several recent high-profile federal reporter’s privilege cases: while the cases include sympathetic subjects or justifiable law enforcement concerns, a valid purpose was served by each leak, and reporters should be protected against compelled disclosure.

Looming Struggle

In December 2003, a federal judge in Washington, D.C., ordered five reporters to reveal the identities of confidential sources who gave them information about Wen Ho Lee, a former nuclear physicist at Los Alamos National Laboratory in New Mexico who was once suspected of espionage. Another journalist was later ordered to reveal his sources, too.

Lee was investigated in 1999 by the FBI, which suspected him of sending U.S. nuclear secrets to China. During the investigation, members of the news media reported information about the FBI’s interest in Lee. He later pleaded guilty to one count of mishandling secure documents, but all other charges — more than 50 felony counts — were dismissed.

As part of his Privacy Act lawsuit against the government, Lee is seeking the identities of those who provided the reporters with the information.

On July 1, U.S. District Court Judge Thomas Penfield Jackson in Washington, D.C., gave the six journalists 30 days to argue why they should not be held in contempt of court for refusing to reveal the identities of their confidential sources.

The attorneys in the case are preparing to appeal to the federal appellate court in Washington, D.C., as Jackson is likely to hold the reporters in contempt. In a previous order dated Oct. 9, 2003, Jackson expressed “some doubt that a truly worthy First Amendment interest resides in protecting the identity of government personnel who disclose to the press information that the Privacy Act says they may not reveal.”

There are arguments, however, that a truly “worthy” First Amendment interest is at stake in this case. Press advocates argue that the public had a legitimate interest in the story of the investigation of Lee.

“It is important to remember that the series of press accounts deal themselves with extraordinarily important issues of fact and matters of great public controversy: the transfer of important nuclear weapons information to a potentially hostile nation,” said former Washington Post reporter Scott Armstrong, who founded the private National Security Archive in 1985 to monitor government secrecy.

The stories revealed that “multiple investigations of espionage and several sets of security efforts to control sensitive classified information had failed amidst clumsy inter- and intra-agency collaboration,” according to Armstrong.

In addition, he noted, “the questionable, ineffective and abusive investigative techniques used against Mr. Lee and the allegation of racial profiling . . . are also themselves significant disclosures about the practices of these agencies at a time when they were under scrutiny for other failures.”

These important news stories, Armstrong said, alerted the public to the issues involved in the investigation and would not have occurred without confidential sources. A ruling against the journalists “would also unsettle an untidy but well-established accommodation between government institutions and the media that allows critically important information to surface publicly in an era when secrecy classification and other governmental controls technically cover almost everything and are often used to shape or limit public debate and understanding.”

Naming Plame

Many of the same issues arise in the Plame case, although the alleged damage to the government’s interests — the “outing” of an undercover intelligence operative — is more significant.

Several journalists were subpoenaed in May to testify before the grand jury investigating the Plame leak, and on July 8 attorneys for Tim Russert, host of NBC’s “Meet the Press,” and Time magazine reporter Matthew Cooper appeared in federal court in Washington, D.C., to ask a judge to quash those subpoenas. As the cases progressed behind closed grand jury room doors, many journalists and press advocates expressed discomfort with the issues: the seeming manipulation of the press for political purposes, the possible criminal activity of sources, and the damage to national security that such leaks can wreak.

The leak appears to have been a political counterattack. After Plame’s husband, former ambassador Joseph Wilson IV, returned from a 2002 CIA-sponsored fact-finding mission in Niger, he publicly criticized the Bush administration’s claim that Iraq tried to obtain uranium from the African nation. The implication of the leak of Plame’s identity is a charge of nepotism: that Wilson was unqualified to criticize the administration’s assertions, and that he only got the job after his wife suggested him for it.

While the Plame matter has been reported in the greater context of a highly partisan fight over justifications of war, the leak had a role in providing the public with information about the possible connections and interests of a political opponent. A recent Senate Intelligence Committee report concluded that contrary to Wilson’s claims that his wife never suggested him for the Africa trip, Plame did suggest him for that mission and other CIA-sponsored trips in the past.

Wilson stands by his claim, and in a recent Washington Post op-ed called the allegation a “scurrilous and extraneous charge” that was not substantiated by any evidence in the report.

If Plame was not an undercover agent — which Novak has said is what his sources believed — the leakers may have had a legitimate interest in highlighting her connections to a public critic and his qualifications to speak out as an official authority on a matter of acute public concern. The role of the news media was to pass on the administration’s response to the public.

Taricani and the Tape

On June 21, the U.S. Court of Appeals in Boston (1st Cir.) rejected a television reporter’s appeal to overturn a contempt conviction in In re Special Proceedings. The reporter, Jim Taricani of WJAR-TV in Providence, R.I., was held in contempt on March 16 by a federal judge after he refused to disclose the confidential source who gave him a secret videotape.

A special prosecutor had been appointed to investigate the leak of the videotape, which was given to Taricani in violation of a court order. All parties involved in the case were barred from releasing the tape.

A three-judge panel of the appeals court upheld the contempt finding, holding at the start that Taricani’s “First Amendment argument is an uphill one.” While acknowledging that the precedent of the First Circuit required “heightened sensitivity” to First Amendment concerns and a “balancing of considerations,” the court found that forcing Taricani to disclose his source was appropriate because the information was “highly relevant” to the leak investigation and reasonable efforts were made to obtain the i nformation elsewhere.

As of late July, Taricani had not decided whether to appeal or face the contempt charge.

On Feb. 1, 2002, Taricani reported on an FBI investigation involving public corruption. The broadcast included excerpts of a secret surveillance tape that showed a Providence City Hall official taking a bribe from an undercover FBI informant in a sting dubbed “Operation Plunder Dome.” The investigation ultimately led to the conviction of former Providence Mayor Vincent “Buddy” Cianci Jr. on corruption charges.

Although the appellate court disagreed, 20 national news media organizations argued in a friend-of-the-court brief that the information involved in the case — a news report concerning bribery and extortion by the Providence mayor and other public officials — is information entitled to the highest level of First Amendment protection. The leak itself may have been in violation of a court order, but the information was truthful and newsworthy, the organizations maintained.

Most importantly, the organizations pointed out that there is a public interest in promptly learning whether public officials have engaged in misconduct. “Prompt disclosure of potential official misconduct has enormous value in and of itself,” the groups argued.

All three of these cases present the type of “bad facts” that lead to negative judicial rulings — sympathetic plaintiffs, political maneuvering and possible illegal activity. Whether those bad facts lead to bad law will probably be determined in the near future.