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White House errand boy Robert Novak and credulous New York Times reporters were burned by their sources. Should they be forced to name them?
Jan 22, 2004 | As U.S. courts take an increasingly skeptical look at the long-held belief among journalists that they enjoy a special privilege when it comes to protecting their sources, two high-profile legal skirmishes are addressing that very issue. Unfortunately for advocates of a free press, these battles don't involve stirring instances of media courage, but stories that exemplify what many believe is wrong with journalism today.
"We often have to defend the principle of protecting sources on the least appealing grounds," says Geneva Overholser, a professor at the University of Missouri Journalism School and a former editor of the Des Moines Register. "We can't pick the circumstances. If we could, we'd pick cases prettier than this."
The press's working model for confidentiality has often focused on government employees who risk their careers in order to help uncover a gross injustice that would have otherwise remained hidden. Think of Daniel Ellsberg leaking the Pentagon Papers to the New York Times, or the Washington Post's Bob Woodward and Carl Bernstein protecting their Watergate sources more than 30 years later.
But what about sources who hide behind their confidentiality agreements and mislead reporters to score political points via the press? What about those who lie or break the law with their disclosures? As Los Angeles Times columnist Robert Scheer recently noted, the argument for confidentiality "is undermined by the increasingly common practice of government sources using reporters to spread falsehoods or discredit foes, knowing reporters will hide their identity."
It's hard to find much public good that has come from either of today's simmering sourcing controversies: a lawsuit over New York Times stories accusing scientist Wen Ho Lee of espionage, or the Justice Department investigation into who leaked the name of CIA operative Valerie Plame to conservative columnist Robert Novak. Taken together, they create "one of those situations where people are holding their noses because the stench is so bad," says Aly Colon, ethics group leader at the Poynter Institute in St. Petersburg, Fla., a school for journalists. "But the consequences of not defending the principle that you've made a promise is even worse. Because if you don't defend the ones that stink, how do you defend that ones that don't?"
Wen Ho Lee is the scientist at the Los Alamos nuclear laboratory who was accused of espionage in 1999, and who for months was the subject of damning reports by the New York Times' Jeff Gerth and James Risen. Their work often reflected -- as fact -- the views of a key source, Notra Trulock, the Department of Energy intelligence official who had been shopping his conspiracy theory about Lee -- and about the Clinton administration's refusal to catch an "obvious" communist spy -- to various government officials and agencies for months before the Times embraced it in the spring of 1999. A one-time contributor to the right-wing chat site Free Republic, and now an associate editor at the right-wing media watchdog group Accuracy in Media, Trulock's political agenda is well known.
The problem for the Times turned out to be that virtually none of the allegations that Trulock helped lay out for the newspaper were true. One year later, after the Times' front-page accusations about spying at Los Alamos, government prosecutors, who once claimed Lee had downloaded the "crown jewels" of the nuclear defense system, agreed to free Lee if he pleaded guilty to one count of improperly downloading classified material to a non-secure computer.
Lee is now pursuing a Privacy Act lawsuit against the U.S. Energy Department and Justice Department, alleging that government officials supplied reporters with private information about him and suggested he was a suspected spy. "The New York Times stirred up a big hornet's nest," says Lee's attorney, Brian Sun. "Dr. Lee was damaged in a way that's irreparable. He can't recover his reputation after being identified in the press as a spy."
To prove government liability, Sun wants reporters to divulge their sources, and to date the presiding judge agrees, recently waving off journalists' objections that their sources should be protected. Not if the sources violated the Privacy Act in the process of leaking, wrote Judge Thomas Penfield Jackson of the U.S. District Court in the District of Columbia.
The Times stands at the center of the case. Up until the Jayson Blair fiasco last spring, the Times' worst-case-scenario coverage of the Lee saga stood as perhaps the paper's most embarrassing reporting episode of the last quarter-century. Fast-forward five years later and Times reporters are facing the prospect of jail time for protecting the same politically motivated sources who helped embarrass the paper in the first place.
"It's insult to injury," notes Ian Hoffman, coauthor of "A Convenient Spy: Wen Ho Lee and the Politics of Nuclear Espionage." "This case is ugly all the way around. But those reporters have to stand by those agreements. Even if it appears as though the information they received turned out to be incomplete or tilted to manipulate them, that's what they're stuck with. It ought to give everyone pause about using confidential sources."
The other high-profile case is hardly more appealing. It centers on the ongoing Justice Department investigation into senior Bush administration officials leaking the identity of an undercover CIA operative to Robert Novak, who published the information in a July 14 dispatch. In his column, Novak mentions "two senior administration officials" as his sources.
The agent was Valerie Plame, whose husband, former U.S. ambassador Joseph Wilson, was given a sensitive CIA mission of going to Africa in 2002 to investigate the claim, mentioned in a Bush State of the Union Address, that Iraq was trying to obtain uranium from Niger. Wilson concluded that the charge was baseless and he soon became a public critic of Bush's case for invading Iraq. In hopes of undermining Wilson's credibility, some inside the administration tried to advance the story that Wilson was picked only because of his wife's position at the CIA.
Six other journalists, including ones at Time magazine, NBC and MSNBC, reportedly received the same tip. But Novak was the only journalist to print it, complete with Plame's identity. For now, Novak, who refuses to name his sources, is protecting administration officials who not only misled him on the facts but may have also broken the law to score political points.
"It's clear to me he's allowing himself to be used by what now seems to be a spectacularly inappropriate and illegal effort by the White House to discredit [Wilson] by revealing Valerie Plame's name," says Overholser. She notes the stalwart Republican columnist "is participating in something that was illegal and should say who the source was. But it's a political and ideological decision he's made not to do that."
Novak is not alone in his dilemma. The other journalists who reportedly got the tip could come forward, even anonymously, and identify the administration leaker, particularly if they feel senior administration officials breached the Intelligence Identities Protection Act by uncovering a covert CIA agent. According to the Supreme Court's 1972 ruling in Branzburg vs. Hayes, the last time the high court dealt with the issue of the press's privilege, reporters may be compelled to testify if they witness a crime being committed. In Branzburg the court, while setting aside some exemptions, ruled that the public's right to that kind of information took precedence over a reporter's need to protect sources.
Novak himself insists he broke no law by leaking Plame's identity. In a follow-up column, he suggested he was wrong to refer to Plame as an "operative," and that sources subsequently told him she was simply an "analyst" -- which would mean that even though he got the story wrong, he broke no law, because it's not illegal to identify CIA analysts, only operatives. That fallback theory has crumbled, though. As even the conservative Washington Times made clear, "reports are incorrect in reporting that Mrs. Wilson is an analyst whose identity would not be protected" by law.
If investigators determine the leak constitutes a crime, Novak could be called to testify before a grand jury. "I don't think Novak would cooperate," says Lucy Dalglish, the executive director of the Reporters Committee for Freedom of the Press, which represents journalists ensnared in legal showdowns over sources. "And the most likely outcome would be major fine and jail time."
