National Security Information Flow: From Source to Reporter's Privilege

Bejesky, Robert, St. Thomas Law Review

REPORTER'S PRIVILEGE AND RISKS

IDENTIFYING AND BALANCING POLICY INTERESTS

Recent cases have returned attention to the question of whether journalists should be able to acquire and publicize classified information, and whether the reporter's source can remain confidential if legal proceedings necessitate the source's testimony. Journalists claim that a "reporter's privilege," which can shield the identity of confidential sources from disclosure during court processes, (199) is essential because the privilege stimulates an uncensored "free flow of information," (200) supports the public's "right to know" government activities, and emends populace understanding of policies. (201) Justice Stewart considered maintaining source confidentiality--a right implicit in gathering the news. (202) To journalists, revealing a source's identity after promising confidentiality to that source in exchange for accurate information is considered a breach of journalist ethics (203) and could result in liability under promissory estoppel. (204) The New York Times Chairman, Arthur Ochs Sulzberger, and Chief Executive Officer, Russell T. Lewis, contend "[t]he press simply cannot perform its intended role if its sources of information--particularly information about the government--are cut off .... Without an enforceable promise of confidentiality, sources would quickly dry up and the press would be left largely with only official government pronouncements to report." (205)

Alternatively, industry interest may not be innately united with public interest. In Branzburg v. Hayes, which set the governing precedent, the Supreme Court doubted that a constitutionally-based protection was necessary to facilitate a free flow of information. (206) Moreover, the Court surmised that advocacy for a privilege was driven by the "professional self-interest" of reporters. (207) Reporters have self-interest in breaking a big story; they may feel empowered by possessing a secret source; or, they may mistakenly overestimate the value of the information to public discourse.

Also, there is the judicial interest in safeguarding the equipoise of parties to litigation. Professor Robert Zelnick summarized this concern, stating:

   In an era when sitting presidents have been compelled to
   produce incriminating evidence or remain available for ordinary
   civil lawsuits, I have found it difficult to see why a member
   of the press should be immune from testifying about a crime he
   has witnessed or an event that affects the rights and liabilities
   of parties to a legal dispute. (208)

However, the utility of a news account to public discourse could conceivably outweigh the needs of a court if a whistleblower would only anonymously expose something illegal, unethical, (209) or imperative to democratic dialogue (210) after a guarantee of confidentiality. Still, even with this derivative contingency, the value of a source's information is a fact-intensive question that is likely unsuitable to inflexible ex ante rules.

From the analyses in Parts I through V, it seems unreasonable to unconditionally protect anonymity when a source's information may not be valuable to public discourse, but could instead be part of the "game of leaks" that reporters cannot disentangle. (211) If journalists are unable to adequately distinguish, assess, and methodize varieties of asymmetric information, such as between authorized and unauthorized leaks, the risk of perpetuating false stories that could cognitively impact three hundred million Americans is a danger that should outweigh a reporter's privilege. Moreover, even if media outlets strive to conscientiously and objectively assess the confidential source's self-interest, accounts, (212) and potential for abuse, (213) media outlets may also need to beware of their own journalists. (214) Consider the following recent cases of journalist fraud, which one can only hope is a remote anomaly.

In June 2003, Howell Raines and Gerald Boyd, two top editors at The New York Times, resigned because Jayson Blair, their subordinate, "committed frequent acts of journalistic fraud." (215) The New York Times wrote that Blair's "widespread fabrication and plagiarism represent[ed] a profound betrayal of trust and a low point in the 152-year history of the newspaper .... He fabricated comments. He concocted scenes. He lifted material from other newspapers and wire services." (216) Similarly, in mid2003, USA Today began investigating Jack Kelley, a foreign affairs correspondent and top writer, over whether his reporting was adequately sourced. (217) The newspaper ultimately concluded that Kelley's twenty-one years of reporting and over 1,400 stories covered revealed a "pattern of lies, deception, and plagiarism." (218) Kelley and Managing Editor Hal Ritter resigned, while Publisher Craig Moon apologized. (219) Both periodicals conducted internal investigations and printed "high-profile mea culpas to maintain their readers' trust and confidence." (220) Both investigations revealed intrinsic problems with using confidential sources (221) and editorial lapses in verifying the accounts of confidential sources. (222) If there had not been a norm that permitted the use of confidential sources, the means of concealing falsities within stories would have been reduced.

DISTINGUISHING REASONS FOR THE PRIVILEGE

To more fully assess the utility of a reporter's privilege in relation to the opening analytical framework, and to appraise whether recent advocacy for statutory formulae to protect source confidentiality is favorable, the chronology of non-national security cases is probative because it preceded and ostensibly influenced the precedent that now governs national security cases. The two contexts are theoretical analogies, but involve dissimilar needs, premises, and public interests.

The first confidential source privilege context arose during the nineteenth century, an era in which "at least 222 correspondents, news writers, and editors ... were asked by congressional committees ... to identify sources or disclose other information." (223) Leaks to reporters often exposed government corruption and wrong doing; and, when investigations followed to substantiate the merit of charges, journalists were sometimes subjected to criminal prosecutions for failing to reveal confidential sources. (224) Since then, most questions of reporters attempting to shield confidential informants have arisen in grand jury proceedings, civil cases (particularly libel cases), and criminal cases. (225)

In 1958, for example, Marie Torre became the first reporter to proffer a confidential source privilege in a civil proceeding. (226) In that case, Judge Potter Stewart, before being appointed to the Supreme Court, asserted that protecting confidential sources was important to fostering the free flow of information; nonetheless, he ordered Torre to divulge the confidential source because the source was essential to the merits of Judy Garland's libel action. (227) This case was followed by an abrupt upturn in privilege assertions, predominantly because journalists granted promises of confidentiality to leaders of groups that protested the Vietnam War and advocated for civil rights and social justice causes. (228) From 1960 to 1968, the government issued only 1.5 subpoenas per year on journalists, but the Nixon Administration entered office in 1969 and issued seventy-five subpoenas per year during 1969 and 1970. (229) This period was arguably the last example of vigorous journalism that sought to check government in ways consistent with the Framers' vision for the press. (230)

Subsequently, in Branzburg, Paul Branzburg refused to testify about his confidential source for articles involving drug activities that were published in The Courier-Journal, a Louisville, Kentucky, daily newspaper. (231) In a 5-4 decision, the Supreme Court held that reporters do not have a First Amendment right to refuse to answer grand jury questions, including inquiries about the identity of confidential sources. (232) The Court reasoned that the interests, needs, and rights inherent in the judicial process were sufficiently substantial "to override the consequential, but uncertain, burden on news gathering ... [And r]eporters, like other citizens, [must] respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial." (233) The Court rejected "the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future." (234) With Branzburg controlling, journalists can expect to have to disclose confidential sources in grand jury proceedings. (235)

By the mid-1970s, journalists attempted to assert rights directly from the Press Clause to protect source confidentiality, access courtrooms and prisons, restrict law enforcement authorities from searching newsrooms, and defend libel cases. (236) Arguments naturally hinged on Press Clause interpretation, and debate resultantly increased over whether the Framers intended a special First Amendment protection for journalists beyond what is available to the general public. (237) Some scholars maintained that there should be no distinction between the Press and Speech Clauses, (238) while others asserted that there should be elevated protection for the press as a facilitator of democratic dialog. (239) The Supreme Court has itself cited the Press Clause together with the Speech Clause to reference its importance, (240) and Justice Stewart favored recognizing an institutional Press Clause right. (241)

That notwithstanding, a majority of "the Court has never explicitly recognized that the Press Clause involves any significant content different from that provided to all individuals by the prohibition on abridging freedom of speech." (242)

In addition to the protection of the integrity of court processes and the void in special treatment under the Press Clause, there are other jurisprudential and logical impediments to recognizing a confidential source privilege directly from the Constitution. Journalists seek to invoke the privilege not as a fundamental individual right, but as a means of best protecting the institution of the free press, even though "institutions do not have civil rights." (243) Moreover, this privilege is rather unique. Privileges between doctors and patients, lawyers and clients, husbands and wives, and churchgoers and priests are afforded to preserve secrecy of information vis-a-vis the rest of the world in order to facilitate a public policy with regard to that relationship. The privilege between journalists and confidential sources, conversely, aims to champion source anonymity so as to publicly disseminate the substantive message.

RATIONAL CHOICE WITHIN A QUALIFIED PRIVILEGE

Branzburg affirms that a journalist has no constitutional right to refuse to identify a source when a court requires that source's disclosure. (244) A journalist also has no absolute privilege to refuse to disclose a source based on any extra-constitutional protection. (245) However, there are court based, legislative, and prosecutorial screening devices that ostensibly reduce risks to a journalist's rational calculation of whether to use a confidential source's information in a story.

Nine Circuit Courts have recognized a qualified privilege (246) and have developed various tests that balance competing interests to ascertain whether source disclosure is necessary to court processes. (247) Thirty states have shield legislation that permit journalists to withhold confidential sources from prosecutors, grand juries, and opposing parties in civil cases. (248) These statutes balance the needs of the court and the journalist's prerogative in asserting the privilege by examining the importance of the confidentially-held information to issues in the case and determining whether the information can be obtained from other sources. (249)

Also, when the government is a party to legal proceedings, the Attorney General has discretion over whether to require revelation of confidential sources. (250) Parameters set forth in 28 C.F.R. 10 clearly respect journalist prerogative to use secret sources in newsgathering practices and mandate disclosure only for information that is essential to a case. The provision states:

   (f) In requesting the Attorney General's authorization for a
   subpoena to a member of the news media, the following principles
   will apply:

   In criminal cases, there should be reasonable grounds to believe,
   based on information obtained from nonmedia sources, that a crime
   has occurred, and that the information sought is essential to a
   successful investigation--particularly with reference to directly
   establishing guilt or innocence. The subpoena should not be used to
   obtain peripheral, nonessential, or speculative information.

   In civil cases there should be reasonable grounds, based on
   nonmedia sources, to believe that the information sought is
   essential to the successful completion of the litigation in a case
   of substantial importance. The subpoena should not be used to
   obtain peripheral, nonessential, or speculative information.

   The government should have unsuccessfully attempted to obtain the
   information from alternative nonmedia sources.

   The use of subpoenas to members of the news media should, except
   under exigent circumstances, be limited to the verification of
   published information and to such surrounding circumstances as
   relate to the accuracy of the published information.

   Even subpoena authorization requests for publicly disclosed
   information should be treated with care to avoid claims of
   harassment.

   Subpoenas should, wherever possible, be directed at material
   information regarding a limited subject matter, should cover
   reasonably limited period of time, and should avoid requiring
   production of a large volume of unpublished material. They should
   give reasonable and timely notice of the demand for documents.
   (251)

Newspapers, periodicals, and media across the nation diurnally use unidentified sources, but it is rare for a source to be implicated in a court case and even rarer for a confidential source to be indispensable to legal proceedings. (252) Being unregulated, journalists and editors exercise discretion (253) and decide whether to use confidential sources, assess the source's credibility and the value of information, resolve the level of sourcing necessary for accurate reporting, and construe journalism ethical standards and outlet policies. Meanwhile, when a journalist gathers research for a story, the probability that a confidential source must later be revealed is low. But if a court case does arise, the source could be sufficiently crucial to judicial processes to bypass post-publication protections, such as state shield laws, Attorney General parameters, and court balancing tests. (254)

Since journalists maintain that the profession requires heightened protection for confidential sources, reporters seemingly believe that institutional frameworks do influence daily news reporting. In other words, the lack of an absolute protection during the process of receiving information, promising anonymity to a source, and deciding to publish a story containing the source's information sways a journalist's rational choices in daily reporting. Does the distance between qualified and absolute privilege generate future uncertainty, exacerbate perceived risk to chill, or negatively influence reporting? (255) If the journalist is not legally obligated to intractably defend secrecy, does this influence the source's decision to contact the journalist and impart information? There are no clear answers to these questions, or to how important future information could be to public discourse or possible court processes. If the lack of an absolute privilege does not engender additional risk, influence reporting adversely, or reduce a confidential source's decision to come forward, (256) journalist consternation is an exaggeration. Denying an absolute privilege may even foster more conscientious news production practices.

REPORTER PRIVILEGE QUESTIONS IN THE NATIONAL SECURITY CONTEXT

The Recipient of National Security Information and the Public's "Right to Know"

As addressed in the previous subsections, risks to a journalist exist because a confidential source's message could invoke individual rights and court interests. When there is a leak of national security information, however, journalists should undoubtedly recognize that a source providing classified information may be engaging in a criminal offense. (257) What is uncertain is the likelihood of prosecution. An "authorized leak" is unlikely to be investigated, but an "unauthorized leak" has some possibility of prosecution. (258) Also, the public interest in dissemination and secrecy is uncertain. While transparency in government is generally favored, there is a public interest in maintaining secrecy that can further countenance defense measures to confront a security threat. On the other hand, public knowledge of the gravity of a perceived threat may be auspicious if populace support is necessary for the government to adequately respond to a threat. (259) The requisite balance among these discretions is a fact-intensive and contextual question, but one that can be normatively applied.

For example, the Bush Administration selectively declassified information and used controlled leaks to embellish unsubstantiated threats to a media that seemed uninterested in challenging allegations. (260) But when criticism and whistleblowers emerged, the Bush Administration emphasized that secrecy was necessary for security. (261) Information provided by whistleblowers about the lack of evidence to support the claims that Iraq possessed weapons of mass destruction and had links to al-Qaeda, the surveillance programs conducted on Americans, and the news of torture followed the pattern of emphasizing secrecy, (262) even though these were effectively all instances of whistle-blowing. These circumstances may suggest that the public interest in dissemination is exploitable, particularly by overstating the gravity of a threat, and that the severity of the national security breach may be emphasized (263) and even culminate in self-interested investigations and prosecutions to protect secrecy prerogatives. (264)

New York Times Co. v. United States, decided in 1971, opened the modern-day precedent on publication of national security information, (265) which derivatively influences journalist expectations on confidential source privilege. The Supreme Court accepted an expedited review over the Nixon Administration's attempt to enjoin The New York Times from publishing portions of a classified seven-thousand-page history of the Vietnam War (dubbed the "Pentagon Papers"), which was illegally obtained by Daniel Ellsberg, a government consultant. (266) The Court held that the government can restrict publication of classified information if it would "surely result in direct, immediate, and irreparable damage to our Nation or its people"; having said that, the Court noted that this exception was not applicable in the present case. (267) In reaching its decision, the Court emphasized the typical reluctance to permit prior restraints on dissemination, and that there was no apparent overriding interest, such as might exist with an Espionage Act violation. (268) National security information, including that which is illegally-obtained, can be received by a journalist; and, in practice, it appears that the media "has a nearly absolute right to publish leaked information." (269) Likewise, journalists "generally do not believe that seeking or receiving classified information is illegal or unethical." (270)

EXCEPTIONS TO NEW YORK TIMES CO.

Some federal court cases challenged the New York Times Co. principle that favors dissemination, generally because the information was of lower public value and of higher national security interest. In 1979, the government was granted the first temporary restraining order ("TRO") as a prior restraint to prevent the publication of national security information. Prior to publishing "The H-Bomb Secret: How We Got It--Why We're Telling It," (271) The Progressive magazine provided the piece to the Department of Energy ("DOE") for review, but the DOE contended that the article contained restricted information. (272) However, Howard Morland, the author, only used public sources to produce the piece and did not have access to classified information. (273) The federal district court balanced competing interests and held that there was "no plausible reason why the public needs to know the technical details about hydrogen bomb construction," and that the government had an interest in preventing nuclear proliferation. (274) The TRO was overruled, but the initial decision departed from the New York Times Co. case and may suggest that it is possible to have a prior restraint when national security is at issue even when the content is not classified. (275) Similarly, in Snepp v. United States, discussed earlier, the CIA did not need to prove that Frank Snepp actually published classified information in his book, Decent Interval, but only that he published it without first giving the CIA a prepublication review. (276)

The clearly discernable situation that can restrict circulating classified information and punish for dissemination occurs when the unauthorized disclosure is to a private party and there is a clearer compromise to U.S. national security interests. (277) The public interest in freedom of information is reduced and there is likely no mass publication. The Espionage Act of 1917, which is based on the Defense Secrets Act of 1911, broadly prevents the disclosure of national defense information to "any person not entitled to receive it." (278) It criminalizes copying, receiving, obtaining, and disseminating national security information with the "intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation." (279) Other provisions of the Espionage Act further specify information protected, such as those that restrict communications of classified information in a "time of war" (with no need for "intent to harm") or to a foreign power. (280) These provisions envision violations of the most evident harm to a country, such as when an individual with a security clearance provides country secrets to another state for financial or other reasons. (281)

Nonetheless, the public interest in receiving information is balanced against the degree to which an Espionage Act violation actually places U.S. national security at a relative disadvantage is interpretable. This was encountered in the competing arguments in United States v. Morison, a case involving the first indictment of a government employee under the Espionage Act for revealing classified information to the media. (282) Samuel Loring Morison, while employed at the Naval Intelligence Support Center, removed the words "Top Secret" from satellite photographs and transmitted them to Jane's Defence Weekly. (283) He was convicted of possessing and disseminating the photographs under Section 793(d) and (e) of the Espionage Act, which affirms that anyone possessing classified national security information who "willfully communicates, delivers, [or] transmits ... the same to any person not entitled to receive it" can be prosecuted. (284) The court emphasized the importance of protecting national security information, as well as the public's competing interest in having information that can impact their perceptions about foreign policy and war. (285) The conviction was upheld, but Morison was later pardoned by President Clinton. (286)

United States v. Rosen unfolded at the height of the leak investigations during the Bush Administration. (287) This case also involved First Amendment rights, New York Times Co. principles that favor not restricting dissemination, and core Espionage Act rules. In Rosen, Pentagon official Lawrence Franklin provided classified information to two American Israel Public Affairs Committee ("AIPAC") lobbyists--Steven Rosen and Keith Weissman--who then provided the information to other AIPAC members, foreign officials, and members of the media. (288) Weissman and Rosen were charged as Franklin's conspirators in violation of Section 793(d), (e), and (g) of the Espionage Act. (289) The chain of possession indictments created a question forecasted by Justice White in his concurring opinion in New York Times Co. (290) On this question, Judge Ellis believed that secondary disseminators could be prosecuted along with those in direct violation of their classified information "trust" relationship, (291) but ultimately only the latter was held criminally responsible for revealing the classified information. (292) Judge Ellis applied a strict scrutiny standard and emphasized that the government did have a "compelling interest" in protecting the national security information, (293) but to convict the secondary disseminators under the Espionage Act, the government needed to prove that there was a "bad faith purpose to either harm the United States or to aid a foreign government." (294) Franklin, the original source and the only one who held the security clearance, pied guilty and received a twelve and a half year sentence that was reduced to probation and home confinement. (295) The charges against Weissman and Rosen were eventually dismissed. (296)

The most recent twist on leak and publication of classified information has generated additional legal ambiguity due to the untraditional news outlet. (297) In 2010, WikiLeaks, a website devoted to revealing secretive government information, publicized both a decrypted video of a U.S. military helicopter shooting at civilians in Iraq and thousands of classified documents, some of which also revealed apparent wrongdoing by U.S. and foreign government officials. (298) Army intelligence analyst Bradley Manning faced twenty-two charges for allegedly leaking the video to WikiLeaks and using unauthorized software on government computers to download classified information; (299) however, Julian Assange, the founder of WikiLeaks, has not yet been indicted under the Espionage Act. (300)

Several challenges flow from this situation. First, it is regrettable if either sensitive information (301) or misleading and unverifiable accounts were revealed by the WikiLeaks postings. This appears to be wholesale dump of unverified information (302) on the Internet and it followed shortly after the precedent of the Bush Administration selectively declassifying abundant amounts of false intelligence information to the American public about Iraq. (303) Second, the U.S. soldier linked to the video leak of the helicopter shooting was criminally charged. (304) It is disturbing that an illegal exposure is required to publicize an alleged massacre of civilians. Unfortunately, hiding potential crimes inside the U.S. national security apparatus is not novel. (305) Third, Julian Assange is facing sexual misconduct charges, (306) which may distract public attention away from substantive national security leak issues.

CONCLUDING POINTS

The opening analytical chart distinguished among classification, selective declassification, authorized leaks, and unauthorized leaks. While each type will have disparate value to public discourse, New York Times Co. affirms that the press has a general right to disseminate classified information upon receipt. If information undermines national security and is less relevant to the public, then publication and the chain of custody may be called into question. Branzburg affirms that a journalist will be required to reveal a confidential source if court proceedings require the source. (307) The bearer of classified information is frequently a confidential source. Sources violating secrecy oaths, particularly in combination with Espionage Act applicability, make prosecutions of the sources possible. Prosecutions of intermediaries and journalists for disseminating classified information seem less likely since their legal obligations are held to a lower standard. Raising those standards on journalists seems possible with bills currently pending in Congress. (308)

The final section details the perduring controversy involving former Ambassador Joseph Wilson, Valerie Plame, Judith Miller, and White House officials that invoked general overlap among legal principles and brought reporter privilege questions to the forefront of public attention. The Ninth Circuit in Shoen v. Shoen held that "[t]he journalist's privilege is designed to protect investigative reporting," (309) and that is assuredly not the substance of this drama. Moreover, the context, the type of intelligence, and the news value of the rumpus bear a counterintuitive outcome.

RECENT HIGH-PROFILE PRECEDENT

INDIVIDUALS INVOLVED

Former Ambassador Joseph Wilson traveled discreetly to Niger on behalf of the CIA in 2002 to investigate an allegation that Niger sold raw uranium to Iraq, which would have been proscribed under U.N. Security Council resolutions. (310) After meeting with officials for several days, Wilson provided what he believed were explicit conclusions that no said transaction occurred. (311) While it is not entirely evident if the White House received, slighted, or simply ignored Wilson's conclusions, (312) the question of whether notice was absolutely received might have been inconsequential if circumstantial logic was employed. It should have seemed implausible that a five hundred ton uranium sale could have been skulked passed both the French and Nigerian officials who controlled the mines, transported from the middle of Africa on "twenty five hard to conceal ten-ton tractor-trailers," loaded onto an oceangoing freighter, and delivered to militarily-quarantined Iraq without a record trail or notice. (313) Instead, President Bush tweaked the accusation for the January 2003 State of the Union address by maintaining that Iraq attempted to procure uranium from Africa and by also referencing British intelligence. (314) Another problem with the claim was that to engender a tangible threat, raw uranium would have required ten years to enrich and weaponize, but there was no evidence of an active nuclear enrichment facility in Iraq. (315)

After the invasion of Iraq, Wilson served as a whistleblower by writing an op-ed in The New York Times that contended the Bush Administration distorted the facts about the alleged sale. (316) A week later, Robert Novak wrote an article revealing that Valerie Plame, Wilson's wife, is a CIA "operative on weapons of mass destruction," and that "[t]wo senior administration officials" informed him that Plame had arranged for the trip. (317) Other articles also reported that she had been a covert CIA operative. (318)

The CIA investigated and determined that the leak was a "possible violation of criminal law concerning the unauthorized disclosure of classified information" under the controversial (319) Intelligence Identities Protection Act of 1982, which prohibits revealing the identity of covert agents. (320) The CIA, whose political boss was Bush's National Security Council, (321) referred the case to the Department of Justice. Attorney General John Ashcroft appointed Patrick Fitzgerald as Special Counsel to investigate the source of the leak. (322) Fitzgerald's investigation unfolded and situated The New York Times reporter Judith Miller at the …

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Publication information: Article title: National Security Information Flow: From Source to Reporter's Privilege. Contributors: Bejesky, Robert - Author. Journal title: St. Thomas Law Review. Volume: 24. Issue: 3 Publication date: Summer 2012. Page number: 435+. © Not available. COPYRIGHT 2012 Gale Group.

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