Courts should respect anonymity of genuine whistle-blowers
FAIR, the national media watch group, encourages the reporters and news outlets who have been asked to reveal their sources in the Valerie Plame and Wen Ho Lee cases to cooperate with investigators. Protecting the identities of confidential sources is a journalistic right that should be recognized by the courts, but only when it protects genuine whistle-blowers, not when it shields government wrongdoing.
Plame is the covert CIA officer whose identity was apparently leaked after her husband, former ambassador Joseph Wilson, charged the Bush administration with misuse of intelligence. Lee was a scientist falsely charged by the Clinton administration with being a Chinese spy, and officials seem to have leaked selective information about him in an effort to discredit him in the press.
Reporters in both cases are being told by investigators to reveal the specific members of the government who transmitted information. FAIR believes that attorneys’ attempts to discover these sources are legitimate, and the ethical journalistic choice is to assist their efforts.
The ability to protect confidential sources who reveal government wrongdoing is an important journalistic protection that deserves judicial respect. In both the Plame and Lee cases, however, the journalist’s sources were not revealing government wrongdoing, but committing government wrongdoing .
In both cases, the alleged crime was the act of revealing protected information to journalists in order to harm the government’s enemies. Given that the alleged criminal acts apparently involved oral conversations between government officials and journalists, it is likely that no evidence of these purported acts would exist except for the journalists’ potential testimony.
Unless one believes that the government ought to be able to surreptitiously use its enormous information-gathering powers to attack opponents with impunity, investigators must have the ability to ask journalists for their sources in such cases, and to compel them if necessary.
Some have presented these cases as government assaults against the freedom of the press. “Journalists should not have to face the prospect of imprisonment for doing nothing more than aggressively seeking to report on the government’s actions,” declared Arthur Sulzberger Jr., publisher of the New York Times (8/13/04), whose reporters have been subpoenaed in both cases. But in neither case were reporters reporting on governmental activities; rather, they were taking part in a governmental activity, namely the selective and illegitimate revelation of information to damage an individual.
Lucy Dalglish of the Reporters Committee for Freedom of the Press told AP (8/18/04): “All this has to do with secrecy. The government is trying to keep more and more secrets all the time, and journalists are working harder to uncover those secrets.” Dalglish misses the larger context, which is that the government’s misuse of the power of information involves both concealing and revealing information as it suits its purposes.
The reporters who revealed protected information about Wen Ho Lee were not exposing government secrets, but violating an individual’s privacy. And the journalists who are protecting the identity of the officials who outed Valerie Plame are actually participating in a cover-up of official wrongdoing.
The motive and effect of government leaks are the critical questions, and courts can and should make a distinction between legitimate whistleblowing and illegitimate governmental attempts to use information as a weapon. If Valerie Plame’s name had been leaked to expose an illegal covert operation, it would be an entirely different matter and should be treated as such by the legal system. The First Amendment exists so that the press can be a check on government abuse of power, not a handmaiden to it.