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When Sources Lose Protection, Readers Lose Access

There are no obvious winners in the epic struggle among Judith Miller, The New York Times and Special Prosecutor Patrick J. Fitzgerald, but plainly the losers are you and me. We lose because the vice president’s chief of staff never invites us to a power breakfast to discuss intelligence failures in Iraq. The president’s political guru does not give us the White House spin on the issue of the day. No tobacco employee tells us how cigarette manufacturers alter nicotine levels in their products.

You and I depend on journalists to bring us such information. Journalists, in turn, often rely on sources who refuse to be identified. After the Fourth Estate’s recent malleability under the special prosecutor’s grand jury hammer, any such source clearly must think twice before speaking out. Some sources talk to journalists for altruistic reasons, but not usually. Many seek publicity. Those who want their names withheld typically have axes to grind, or want to influence news coverage in some way. A good reporter does not seek saintly sources, only accurate and newsworthy ones.

A colleague explained the facts of life to me the first time I covered the New York state Capitol for The Associated Press. Wire services and broadcasters usually covered news conferences, announcements and other staged events. Reporters for The New York Times just put a bucket outside their door.

Why a bucket? To catch the leaks, my experienced colleague replied. It quickly became apparent to me, as was already known by everyone else in the building, that a staged event would be buried in The Times if it appeared at all, while the same news leaked a day in advance might make the front page, or at least a section front. I suspect the most common reason for leaking a story is to get good play from the leakee. Journalists love exclusives.

Yet, as mundane as Albany life sounds (and is), journalism can be a risky business. Orange County (Calif.) Register columnist Gordon Dillow, a friend and former classmate of mine, was embedded with Alpha Company, First Battalion, Fifth Marine Regiment — the first American infantry unit to cross into Iraq when the war began in March 2003. Gordon stayed with Alpha Company all the way to Baghdad, where, during a particularly nasty firefight, a Marine handed Gordon a grenade to use in case the unit was overrun. Jeff Cole, who graduated from the University of Montana School of Journalism a couple of years after I did, was aerospace editor for The Wall Street Journal when he died in the 2001 crash of a private plane piloted by Michael Chowdry, founder and CEO of Atlas Air Inc. Mr. Chowdry, whom Jeff had come to interview, also was killed. The individual journalist, not his or her employer, inevitably bears the brunt of these risks. That also is the case when the need to protect a source collides with a court’s demand for disclosure.

Neither the First Amendment nor common-law principles entitle a journalist to defy a court order to identify a source. The U.S. Supreme Court settled this question in Branzburg v. Hayes (408 U.S. 665 [1972]) and has repeatedly refused to disturb that decision. In response, 49 states have enacted some form of “shield law” to protect journalists’ sources from forced disclosure, though such protection is not absolute. There is, however, no shield law for federal court or grand jury proceedings.

Thus, when Mr. Fitzgerald subpoenaed reporters to try to locate columnist Robert Novak’s source in reporting that Valerie Plame Wilson worked for the Central Intelligence Agency, the journalists really had just two options: Capitulate, or face jail. One by one, they capitulated, but with a novel attempt at face-saving: The journalists said they were accepting voluntary “waivers” from their sources of the earlier pledge of confidentiality.

Mr. Novak, by the way, has refused to say whether he was asked to testify and whether he did so, though he logically would have been the first person called by the prosecutor. Unlike other reporters, Mr. Novak has had no public fight with Mr. Fitzgerald. I have no idea whether Mr. Novak fingered his sources, but when you hear hoofbeats, think horses rather than zebras.

Timothy Russert of NBC and Walter Pincus and Glenn Kessler of The Washington Post reportedly testified under such waivers. Time Inc. Editor-In-Chief Norman Pearlstine turned over reporter Matthew Cooper’s notes to Mr. Fitzgerald. When the prosecutor still insisted on Mr. Cooper’s personal testimony, a Time Inc. attorney worked out such a waiver with counsel for White House political adviser Karl Rove.

Only Ms. Miller resisted, and then only up to a point. After 85 days in jail and a telephone conversation with her source, she testified and turned over her notes about conversations with Lewis I. “Scooter” Libby, then chief of staff to Vice President Cheney. Mr. Libby was promptly indicted — not for leaking Ms. Plame’s name, which Ms. Miller insisted she believed she first heard from someone else, but for allegedly trying to mislead prosecutors — and Mr. Rove apparently remains under investigation.

The problem with voluntary waivers is that the reporter can never know that a waiver is voluntary. What would a source, upon being told to grant a waiver on pain of losing his job, be expected to do? A journalist who agrees to hear information in confidence is taking a serious risk of having either to betray that confidence or to maintain it at great personal cost down the road.

The Times backed Ms. Miller through her long battle with Mr. Fitzgerald and then, bizarrely, turned on her, forcing her “retirement” at age 57 in November. The gist of the newspaper’s complaints, expressed by an editorial page columnist, its ombudsman and in an e-mail by the executive editor to the paper’s staff, is that Ms. Miller is not a very nice person, that she embarrassed the paper prior to the Plame affair by writing stories proclaiming that Iraq probably possessed weapons of mass destruction that turned out not to exist, and that quite possibly Mr. Libby had been one of her sources for those stories.

Times Executive Editor Bill Keller wrote that if he had “known the details of Judy’s entanglement with Libby, I’d have been more careful in how the paper articulated its defense, and perhaps more willing than I had been to support efforts aimed at exploring compromises.” (He later backed away from his “entanglement” description when Ms. Miller protested that her relationship with Mr. Libby was purely professional.) He endorsed comments from Times Washington reporter Richard Stevenson, who said a newspaper should support its reporters, “but only to the degree that the reporter has lived up to his or her end of the bargain, specifically to have conducted him or herself in a way consistent with our legal, ethical and journalistic standards, to have been open and candid with the paper about sources, mistakes, conflicts and the like, and generally to deserve having the reputations of all of us put behind him or her.”

Messrs. Keller and Stevenson seem to think protecting sources is about standing up for the reporter and the newspaper. It seems to me that it is about protecting the source who offers information in good faith, and about protecting the public’s access to such information. Would Mr. Stevenson disclose the name of a source who confided in a reporter if the newspaper later deems the reporter’s work not worthy of defending? And what does he mean when he says the defense of sources should be consistent with “legal” standards? The law is clear: Absent a statutory shield, journalists must talk. Journalists may go to jail for defending an arguably higher obligation, to a source and to the public interest, but there is no doubt that they violate the law by defying a court order.

Jeff Cole paid the highest price for his devotion to getting the news out. Gordon Dillow was willing to pay the same price, and fortunately came home safely — he never needed that grenade. Judith Miller sacrificed 85 days of freedom, and then ultimately sacrificed the principle for which she went to jail, despite her claims and those of The Times that she scored some sort of victory.

For a time it seemed Patrick Fitzgerald was the winner in all this. After all, one of a prosecutor’s objectives is deterrence. Mr. Fitzgerald would probably be happy to know that his work in the Plame case helped discourage some future leaker of government secrets from talking. But Mr. Fitzgerald suffered a setback when, after Ms. Miller talked, Washington Post editor Robert Woodward revealed that he had learned Valerie Plame’s identity well before the Novak column, and that neither Mr. Rove nor Mr. Libby was his source. Mr. Woodward, famed for his use of “Deep Throat” and other anonymous sources to help break the Watergate scandal, testified to the special prosecutor’s grand jury under — you guessed it — a waiver from his source, one that the source refused to extend to allow Mr. Woodward to tell the world what he told the grand jury. So Mr. Fitzgerald, at this writing, presumably is trying to salvage his case against Mr. Libby, and Mr. Woodward, the famed journalist, now must withhold from his own readers the information he gave to Mr. Fitzgerald’s grand jury.

Which is why readers are the true losers in this saga.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.