From the Summer 2008 issue of The News Media & The Law, page 29.
Most journalists know they could not get many stories without the benefit of some hard-won and — hopefully — now well-establish protections. Included are the right to rely on anonymous sources, the ability to face down threats from powerful interests over frivolous lawsuits meant to silence the news media, and the power to obtain important documents directly from the government through the Freedom of Information Act and similar state open records laws.
All of these protections came in to play for some of the winners of the 2008 Pulitzer Prizes. Below, they detail how they were able to get their stories, and what part those protections played.
When Anne Hull and Dana Priest agreed to grant anonymity to more than a dozen sources in their Pulitzer Prize-winning series “Walter Reed and Beyond,” the sources were afraid they’d face retaliation for speaking out against the poor living conditions and disorganized bureaucracy they faced upon returning from their military tours. Some soldiers worried their disability ratings would be reduced as punishment, and they’d lose the money they needed to support themselves and their families.
“Dana said to Gen. Weightman in our final interview, four days before the pieces ran, ‘We’re going to be watching that the soldiers won’t be punished because The Post cares very much about the soldiers,’” said Hull, referring to Maj. Gen. George Weightman. He was in charge of the hospital then; he was relieved of duty after the story broke. “None of these soldiers knew what would come of them speaking out.”
Granted anonymity, the sources spoke freely about their experiences at Walter Reed National Military Medical Center, and they helped bring about significant changes at the hospital. Within five days after the first story in the series was published, Defense Secretary Robert M. Gates named an eight-person independent review panel to investigate Walter Reed’s conditions, calling the situation “unacceptable.”
“I’m grateful to reporters for bringing this to our attention but thoroughly disappointed we did not identify it ourselves,” The Post quoted Gates saying when he first publicly addressed the issue.
But Hull and Priest’s named and anonymous sources also deserve credit.
Despite the controversy that sometimes surrounds the use of confidential sources, the Walter Reed series illustrates why they are so important to journalists and how valuable a promise of anonymity can be.
“In some cases, the confidential sources would be confirmation of something we’d heard when we needed confirmation,” Hull said. “There was no paperwork in the story or documentation, so that made us really reliant on people.”
Hull said she and Priest used at least a dozen anonymous sources to help them write their award-winning series.
“Some soldiers were afraid of retribution from the army, some were afraid that they would hurt their disability rating,” she said. “A lot was at stake for them, and even after the story was published, they were ordered not to speak out.”
After the series ran, lawmakers stepped in to try to repair Walter Reed’s problems. In April 2007, the review panel blamed leadership failures and inadequate training and staffing shortages for the problems at Walter Reed. The panel called for the facility to be closed as soon as possible.
On July 3, construction began on a new Walter Reed building in Bethesda, Md.
Tribune stands its ground, digs for documents to produce lead story
Category: Investigative Reporting
• Maurice Possley, Patricia Callahan, Michael Oneal, Evan Osnos, Sam Roe and Ted Gregory
The prize awarded to staff members of the Chicago Tribune came after they faced threats of libel lawsuits and persevered in the face of records request delays by federal regulators.
In “Many more toys tainted with lead, inquiry finds,” part of their series “Hidden Hazards: Kids at Risk,” Tribune reporters Ted Gregory and Sam Roe found that Chicago stores were selling toys with lead levels exceeding the government safety limits—sometimes violating state but not federal laws. Before publication, three toy manufacturers threatened to sue if the paper went ahead with the story.
“The threats occurred throughout the reporting process, and then intensified in the days before publication,” Gregory said. “They threatened to sue us if we placed the name of their company in the article, and said that it was libelous and unfair treatment.”
According to the U.S. Consumer Product Safety Commission, the Tribune’s tests for lead in toys were among the most comprehensive undertaken outside the commission.
In the face of possible lawsuits, the reporters went back to their attorneys and kept in contact with the manufacturers.
“We took the threats very seriously, and we scrutinized their exact complaints and we contacted them again,” Gregory said. “We expressed our confidence in what we had done, and asked them to provide any documentation that they thought was relevant to our findings. We reexamined their concerns, and then re-expressed what our findings showed, and asked them if they had anything more to add.”
Roe said there was a pattern among toy manufacturers: The reporters would present their test results to the companies, and the companies would reply that their own tests showed the products were safe. But the companies would refuse to share their results.
“One manufacturer said they had a report, but then later admitted that they didn’t,” Roe said.
After sorting through the claims, the Tribune decided to run the stories.
“We had a discussion with lawyers and editors, concluded we were on firm ground, and published the stories without pulling back an inch,” Roe said. “Within a week, the same three pulled their products off the shelf. We called their bluff, and they had to do the right thing.”
The Tribune’s support facilitated the story and its success, but Roe said he’s been concerned for several years that news organizations are increasingly unable to fight back against lawsuit threats.
“If newspapers don’t have resources in place—such as attorneys on staff or experienced reporters—they may drop stories,” Roe said. “I’m worried that as we [the industry] shrink, we won’t have the firepower that corporations do. The threat of [a] suit slows you down.”
The Freedom of Information Act was also essential to the series.
Patricia Callahan has filing cabinets full of documents she requested under the Freedom of Information Act (FOIA) when she was writing her stories for the “Hidden Hazards” series. She estimates that she filed three to four dozen FOIA requests. Callahan wound up using the information she received to write about car seat safety issues and how magnets in toys can kill children who ingest them.
After the stories were published, Congress began investigating the Consumer Product Safety Commission (CPSC) for failing to act when it learned of potentially dangerous children’s products. The Senate and House of Representatives are, as of press time, compromising on a bill to mandate tougher safety tests for children’s products. One of the products that Callahan investigated most closely, Magnetix, was recalled after months of inquiries from the Tribune.
“We wouldn’t have been able to do the stories we did, that brought about great changes, without the FOIA process,” she said.
The process wasn’t a smooth one, however. Callahan made a FOIA request in June 2007 that didn’t arrive until this summer. Now she and her editors must debate whether to proceed with a story based on the new information. Because FOIA requests sometimes take a long time to be processed, Callahan reiterated a common complaint that it can be hard for a journalist on deadline to wait.
The FOIA process was further complicated because CPSC is required to put together information that it believes should be released and then sends it, with the FOIA requests, to the companies involved. The companies then have 30 days to object to the release of the documents.
Still, Callahan had a few pieces of FOIA wisdom at her disposal that helped speed up the FOIA process.
She recommends that journalists carefully tailor their requests. She said she agonized over what information she would place in specific requests, and did research in advance to help her decide what to include. She also asked the agencies to provide specific legal rationales when they denied her requests.
“I just had to be really selective, knowing that if I sent in too many it would limit this very small agency and I wouldn’t get a response for years,” she said.
Callahan also split her requests into smaller FOIA requests. That way, if an agency lagged producing one document, the others wouldn’t be held up.
To journalists who are considering using FOIA, Callahan says, “Be persistent, be polite, and remind them that they’re obligated under the law to release the information, and you have the right to that information as a citizen.”
Ultimately, the FOIA requests returned an avalanche of information. Digging through the documents helped bring the story to life.
Callahan passed on boxes of information acquired under FOIA to her colleague Maurice Possley and asked if he could find a story in them. What he found was that the CPSC and the manufacturer of a dangerous crib, Simplicity Inc., had failed to notify parents that the crib’s drop rail detached from its track. It was linked to the deaths of three children.
“I’m a great believer in documents, because the document speaks for itself,” Possley said. “They’re great evidence. They’re libel-proof. Dealing with FOIA can be frustrating and sometimes you don’t get what you think you should get, but you can get documents that lead to other documents that can spark the chase anew.
“Many times I think FOIA is well worth the wait because the documents are available nowhere else, and then you have them and an exclusive story becomes your story.”
Possley notified CPSC and Simplicity of his findings two weeks before publication, and said he needed to hear back from them by Sept. 20, 2007, if they wanted to respond. On Sept. 21, CPSC announced in a press release that about 1 million Simplicity cribs were being recalled because their drop rails could detach and create gaps that children could fall through.
His part of the “Hidden Hazards” story, “Missteps delayed recall of deadly cribs,” ran on September 24.
“The recall went far beyond what I had ever contemplated,” he said. “It accomplished more than we had expected. People were amazed and gratified that the agency moved.”
“Toxic Pipeline” reporters use anonymous sources to make series fairer
Sources can often demand anonymity to say things that are damaging or embarrassing, either to themselves or perhaps their bosses. But sometimes a situation can be so fraught that sources won’t attach their names to even the most basic, humanizing quotes.
Take for example the New York Times Pulitzer-winning series “A Toxic Pipeline,” which revealed that there were toxic components in products imported from China. Reporters Walter Bogdanich and Jake Hooker could only tell the official Chinese side of the story through anonymity.
Government officials were so hesitant to address the hazards of their exported products that they didn’t even want to say anything in their own defense.
Bogdanich, assistant editor of The Times investigations desk, had many off-the-record conversations while reporting the story, but chose his anonymous sources carefully. Only a handful actually appeared in the series.
Two of those were Chinese officials. The first explained that Americans affected by the poisonings may have misunderstood who regulates chemical companies in China, and become frustrated when they sought help from the wrong people. A second official who was quoted said the poisoning deaths were tragic, and his organization expressed its sympathy.
Bogdanich, already a two-time Pulitzer winner, said that he typically tries to avoid using anonymous sources. He said he and Hooker chose to use those two because fairness demanded it.
“I think it was the highly charged political atmosphere at the time because there was the prospect of the trade wars,” he said. “The first anonymous source provided an explanation of the government’s position, which we thought was warranted for fairness. We could have walked away because they wouldn’t comment, but it wouldn’t have been fair.
“With the second source, as much as we tried to get China officials to comment on the deaths, they wouldn’t, except this one individual who did, but not for attribution. We thought it was important to show that because it showed some kind of contrition and humanity on the part of the officials.”
Bogdanich said it is important to note he and Hooker had documents to back up their anonymous sources.
They used medical records, court documents, FDA records, and shipping documents to piece their stories together. Bogdanich called documents the “foundation” of what he and Hooker did, the part that made their pieces more powerful.
“We explained how we quantified the problem in China, and our statistical approach,” he said. “That’s what separated our stories from stories that are just a bunch of anecdotes. I think that’s why China responded the way it did—because we had hard data.”
Following the series, China issued a large recall on pet food and toys. In May 2007, the U.S. Senate passed a measure that established a warning and notification system for food and set up a fine system for companies that don’t report contaminated products quickly.
Hooker and Bogdanich won the 2008 Pulitzer Prize for Investigative Reporting.
Experiences as Iraq reporter reveal journalism’s value
Steven Fainaru knows the danger of reporting in Iraq and promising anonymity to sources who fear for their lives.
As the reporter who wrote The Washington Post series “The Private Armies of Iraq,” which told the story of the previously unknown role that private security firms play in the war in Iraq, Fainaru knows soldiers, security contractors, and journalists who’ve lost their lives in Iraq.
When the American security contractors Joshua Munns, Jonathon Cote, John Young, and Paul Reuben were abducted on November 16, 2006, Fainaru had returned from interviewing them about 10 days before. He had not yet written a word about them, but he and his editors decided to hold a story on them. They were worried that something they published might prompt one of the abductors to harm the contractors. The contractors’ bodies were returned to their families in spring 2008.
After the abductions, he developed a policy of only taking on controlled risks.
“I started covering Iraq in 2004 and you get over there and you realize how dangerous it really is,” he said. “If you lose your life for a story, of course it’s not worth it. But it’s worth it for the controlled, minimized risk.”
Fainaru said he’s sympathetic to sources who ask not to be named in his stories. Some Iraqis he spoke to were afraid they’d be killed. Some private security contractors feared that the private security industry was so small they wouldn’t be able to get other jobs if they were quoted in stories. Other contractors couldn’t be named because they had signed confidentiality agreements, and they would be fined $250,000 if they breached those agreements.
“I gave the anonymous sources the assurances I give anyone: I wouldn’t give up my notes if I were asked to, I wouldn’t testify and reveal them,” Fainaru said. “You make a promise and you try to keep that promise.”
He saw the importance of leaked documents the same year when his brother, former San Francisco Chronicle reporter Mark Fainaru-Wada, faced contempt charges for refusing to reveal who leaked grand jury documents to him and his writing partner, Lance Williams, about steroid use in professional athletics.
Fainaru said that his brother’s experience and his own experiences as a journalist in Iraq helped show him how important journalism is to the public good.
“I think that in the last few years, I’ve gained a greater appreciation for the potential risks involved and the value of the work,” he said. “It just seems so ironic to me that the newspaper industry is in trouble, but the last few years have demonstrated the importance of newspapers and the value that they add.”