Journalists fear Supreme Court decision on sources

July 03, 2005|By Paul Moore

JUDITH MILLER of The New York Times and, possibly, Matthew Cooper of Time magazine, are preparing to be sent to prison this week for refusing to testify about conversations with confidential sources.

To journalists, a reporter's word to withhold the identity of a confidential source is sacred - with good reason. If that promise proves hollow, journalists will lose access to much of the information they need to tell the truth about the world around us.

"When you promise someone anonymity, you need to be able to keep that promise," Rick Rodriguez, president of the American Society of Newspaper Editors and executive editor of The Sacramento Bee, told Sun media reporter Nick Madigan last week.

The importance of that media role in a free society is underlined by laws in most states that shield reporters from legal demands that they reveal their sources. Maryland's is considered one of the strongest

Miller and Cooper are being pursued by a federal prosecutor who has been investigating a possible criminal leak of the identity of an undercover CIA operative. The investigation is over with no criminal charge apparent. All that remains is the prosecutor's demand that Miller, who never wrote about the leak, and Cooper, who wrote only after the operative was identified, tell what they know.

"Joseph Heller couldn't have written a better script for this situation," said Thomas Kunkel, dean of the school of journalism at the University of Maryland. "The reporters, especially Judith Miller, are really caught in a Catch-22. The person who did the right thing by not writing the story based on the leaks is the one who may end up in jail."

The investigation was triggered by a piece by syndicated columnist Robert Novak, published on July 14, 2003, that disclosed the identity of CIA agent Valerie Plame.

Novak wrote that "two senior administration officials" had told him that Plame was "an agency operative on weapons of mass destruction." Revealing such classified information can be a federal crime.

Despite the fact that Novak's column used the leaked material first, he is not facing possible jail time. Just how he avoided that fate is a tantalizing question for many who have followed the case. The conservative columnist has refused to disclose whether he received a subpoena or whether he provided names of his sources.

Journalists fear that the Supreme Court's decision last week not to hear an appeal from Miller and Cooper's lawyers will encourage similar moves against others.

If Washington Post reporters Bob Woodward and Carl Bernstein had been pursued with the same zeal, the ugly secrets of the Nixon-era Watergate scandal might never have been revealed.

On Tuesday, a federal appeals court ruled that four reporters could be held in contempt for not revealing their sources for articles they wrote about Wen Ho Lee, a nuclear weapons scientist investigated by the United States as a possible spy.

For newsmen and newswomen, the assault on confidentiality is the latest chapter in a dreary season of public dissatisfaction with their work.

That discontent with what we do is likely to prove difficult to answer because it comes from two radically different sources, a survey released last week by the Pew Research Center for People and the Press indicates.

About half the nation thinks the media are "too critical of America" and are "hurting democracy" for failing to uncritically support President Bush's war on terror. The other half faults the media for being too timid in their coverage of Bush and his policies.

Newspaper journalists worry that the public, regardless of how its criticisms are voiced, have less respect for what they perceive as the media's vital role as an honest broker at the heart of American society.

The public's low opinion of the news media is partly the result of the media's own mistakes.

I can testify personally, there has been a growing number of complaints about perceived political bias in the media and questions about the use of anonymous sources.

The accusation that journalists have too often used unnamed sources is legitimate, especially in situations where the anonymous sources were allowed free rein to make off-the-record accusations. But the fact remains that some of the most important work journalists do would not occur without confidential sources. And if potential sources believe reporters may encounter legal pressure to reveal their identity, they will be unlikely to provide information.

What is most disturbing, however, is the misunderstanding - and mistrust - of the news media's primary mission: to scrutinize the performance of those in power.

As difficult as it would be for Miller and Cooper if they go to jail, it is possible that some good could result.

Their fortitude in standing on principle might help change the public's negative view of the media. It also could prompt discussions about federal legislation that would clarify the circumstances in which journalists could protect sources without fear of legal action.

But the immediate future is muddy. Time magazine said Thursday that it would turn over Cooper's notes to the special prosecutor, contending its cooperation would make jailing Cooper unnecessary.

"It's a confusing, complicated and frustrating time for many journalists," Kunkel said.

Paul Moore's column appears Sundays.

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