Waivering: A Number of Journalists Have Testified about Their Conversations with Confidential Sources after Receiving Waivers from the Sources Freeing Them to Do So. Is This a Pragmatic Way to Stay out of Jail or a Breach of Journalistic Ethics That Could Pose Big Problems for the Profession?

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When reporter Judith Miller emerged from jail in late September after 85 days, she and her boss at the time, New York Times Publisher Arthur Sulzberger Jr., were united in declaring victory. She had received a voluntary, direct waiver from her source releasing her from her promise of confidentiality and enabling her to testify in the federal investigation of a CIA agent's leaked identity.

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But one of her attorneys, the famed media lawyer Floyd Abrams, still has doubts about just how voluntary that waiver really was. "I have no idea anymore," Abrams said in December when I asked if he felt comfortable that Miller's source, I. Lewis "Scooter" Libby Jr., had freely granted the release. "Am I comfortable? No." Abrams doesn't think it's fair to ask a journalist to stay in jail when a source calls and asks her to testify because "we can't be sure he means it." On the other hand, adds Abrams, who had approached Libby's lawyer more than a year earlier, more of the things Libby did initially "suggest he didn't want her to testify than vice versa."

The Valerie Plame case marks the first widespread use of waivers that release journalists to disclose confidential conversations with their sources to prosecutors. At Special Counsel Patrick J. Fitzgerald's behest, Libby, then Vice President Dick Cheney's chief of staff, and other White House officials were asked to sign forms freeing reporters from promises of confidentiality. Journalists involved in the case rejected these blanket waivers, but Miller and other reporters ultimately accepted what they described as personal waivers that were voluntary and specific to their situations.

The waivers have exposed troubling fault lines within the industry about when--if ever--it is appropriate to ask a source for a release from confidentiality, and what rules should govern such post-pledge transactions. Interviews with nearly two dozen journalists and First Amendment lawyers, as well as an e-mail survey sent to reporters and editors by AJR (see "Reporters and Confidential Sources," page 40), revealed a striking lack of agreement about the propriety of negotiating such waivers. While virtually all the journalists AJR contacted dismissed blanket waivers as inappropriate and coercive, they differed widely over the merits of personal waivers. Some were deeply disturbed by any infringement on a pledge of confidentiality. Others described reporter-source relationships as a contract that is always subject to further negotiation.

But even if a reporter is willing to negotiate with a source over testimony, the form such discussions should take remains unresolved, suggesting a need for further consensus within the industry. The reporters subpoenaed in the Plame case chose very different paths in obtaining their waivers. Should a reporter talk with a source directly to test the source's sincerity, or would such a conversation introduce potential charges of collusion and obstruction of justice? Should lawyers for the reporter and the source navigate any deal-making? Or does that shirk the reporter's commitment to the source? To what extent should a reporter restrict testimony to protect the source? And after testifying, how much should the reporter disclose to the public?

"I think this whole battle with Mr. Fitzgerald has caused there to be a closer examination about when and how a reporter can go back to a source to discuss whether confidential promises preclude testimony in a case," says media attorney Theodore Boutrous Jr., who represented Time Inc. and its reporter Matthew Cooper in their unsuccessful petition for U.S. Supreme Court review of their contempt citations in the Plame case. "I think it's going to be a new landscape, and so we need a whole new set of principles and protocols that can make this work if it's appropriate but at the same time not forfeit other journalistic values."

Waivers have come up in two other high-profile cases. …