The Plame Scandal, the CBS/Guard Documents Scandal, and Confidential Sources:
When Can Journalists Justifiably Break Their Promises of Secrecy?

By JULIE HILDEN


julhil@aol.com
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Tuesday, Oct. 05, 2004

Lately, journalists' confidentiality promises haven't turned out to be worth very much.

To give one example, consider the ongoing federal grand jury investigation concerning the leak of Valerie Plame Wilson's identity as a CIA agent. (For those unfamiliar with the investigation, I discussed it in a previous column.) In the course of the investigation, a number of reporters have agreed to testify before the grand jury, or to give depositions the grand jury can consider. In their testimony, some are reportedly spilling their confidential sources' secrets.

For instance, the Washington Post had admitted that its own Walter Pincus, in a deposition, has recounted conversations he had with a confidential source. Why? Apparently, because the source has revealed his own identity to prosecutors. In addition, Pincus claims he had the source's approval to give the deposition.

But how willingly did the source reveal his identity, and provide his approval? Was he threatened with prosecution if he did not?

Similarly, CBS News revealed the identity of its source for the controversial Bush National Guard documents - former Texas National Guard officer Bill Burkett - and justified its actions by the fact that its source was cooperative. And indeed, Burkett was (at the time) more than cooperative: He sat for an interview with anchor Dan Rather. In a rapid reversal, the embattled CBS and Rather went from protecting their source to interrogating him.

Under these circumstances, were the reporters justified in revealing their sources? I will discuss that question with respect to each scandal.

Why The Plame Leak Waiver Agreements Should Be Considered Void

First, let's consider the Plame Wilson scandal. There is good reason to be skeptical of the sources' supposed consent to waive confidentiality here.

On September 29 in the New York Times, William Safire asserted that the Special Counsel heading the investigation, Patrick Fitzgerald, "has coerced potential government sources into signing waivers of confidentiality, backed up by dutiful 'nothing to hide' statements. He tells the journalists: See? You have been released from your pledge - now you have no reason not to tell us who talked to you on deep background."

If such coercion is indeed occurring - as Safire says it is - then there is a strong argument that the sources' consent is legally void. As Michael Dorf pointed out in a column for this site, the Supreme Court has clearly held that an agreement with the government can, under certain conditions, be voided when the person agreeing has been put under duress.

Moreover, while one can argue about whether this kind of agreement is legally void, there is little question that it is ugly and unfair - for several reasons.

First, it forces someone to give up an important free speech protection. Technically, under Supreme Court precedent, confidential source protections are not held to be guaranteed by the First Amendment - as I explained in a prior column. But it's clear that First Amendment values do suffer in instances such as this, for the press's constitutional role as watchdog is impaired.

After all, if a reporters' sources have something to lose - and almost all sources who have a lot to say are insiders who do have something to lose - will be loath to talk unless they think their confidentiality agreements will be airtight. And journalistic articles are only as strong as their sourcing.

Second, this procedure plays into the ugly "nothing to hide" argument - which is virtually always a fallacy. The idea is that only the guilty sources will cling to their rights to confidentiality. But that idea is contrary to the fundamentals of our system. The invocation of a right is, well, a matter of right - not an act from which an evil inference ought to be drawn.

Those who truly "have nothing to hide" still have their rights violated when they are forced to give up protections to demonstrate their innocence. And even if they have committed no crime, they may suffer repercussions simply for being outed - for having spoken in confidence to the media. In short, they may suffer simply for speaking - and that is what the First Amendment abhors.

For these reasons, journalists like Pincus should not feel free to break their original promise of confidentiality just because their source has waived their confidential source protections. They should, instead, look into whether the source's waiver is truly voluntary - and refuse to breach confidentiality until they are satisfied that it is.

To be clear, I'm not saying Pincus should necessarily have honored his promise - just that he should have made the decision whether to honor it carefully, after insisting on learning about and considering the pressures put on the source. Here, if the pressures included threats of prosecution, or at least "suspect" status, those pressures were likely too great for the waiver to be considered truly voluntary.

Of course, there might have been separate grounds for Pincus's breaking his confidential promise. For instance, if he felt the evidence showed he'd been used by sources whose leaks were crimes, and who were manipulating him in a concerted smear campaign to put Plame in jeopardy, he might reasonably have chosen to break the promise. Sources ought to be able to count on confidentiality - but not only the ability to manipulate reporters to do their bidding. But Pincus shouldn't have broken his promise just because his source was successfully pressured to give up his cloak of confidentiality.

In sum, reporters who choose to breach source confidentiality, merely because their under-pressure sources said they could, have not acted justifiably. More is required: They must inquire into, and consider, the pressures on their sources - and assume, when a grand jury investigation is in progress, that those pressures might be huge. If they fail to do this, their actions have betrayed their sources, as well as harmed free speech values.

CBS's Bush National Documents Debacle: Was Confidentiality Compromised?

Can the same analysis be applied to the CBS/Dan Rather situation? I will argue that the answer is no - for the institutional pressures there are far les daunting.

As with the Plame scandal, the CBS/Rather source - ex-Guardsman Burkett -- was under pressure. But unlike in the Plame scandal, the pressure apparently came from the media, not the government - and thus the pressure was inherently lesser, for it was not backed up by the force of law.

Burkett plainly feels he was severely mistreated by CBS - for he is suing the network. Indeed, Burkett is reportedly claiming CBS defamed him. But this seems unlikely. For one thing, Burkett had his own chance, in the interview, to speak out and correct any CBS misstatements about him - thus mitigating any damages he might otherwise have suffered. For another thing, it's not clear that there were any CBS misstatements about Burkett: CBS's claim that he gave them the documents is true. And without an untrue statement, there's no defamation case: Falsity is an essential element of defamation, and truth is a complete defense.

But putting the elements of defamation aside, did CBS, after all, mistreat Burkett? Perhaps - and perhaps not. As far as we know, CBS made no threats to Burkett as to criminal or civil penalties that might follow if he didn't out himself. And as a private corporation, rather than a prosecutors' office, CBS did not really have the power to make such threats stick, anyway.

Granted, CBS very likely put a great deal of behind-the-scenes pressure on Burkett to convince him to give up his source protections, and to sit for the interview.

And granted, news agencies should think twice before attempting to persuade their sources to out themselves. The more pressures confidential sources face, the less likely we all are to be willing to play the crucial role of whistleblower. And without whistleblowers who can receive, and believe in, promises of confidentiality, the press's ability to investigate - and thus to police our government - would be crippled.

Still, in the end, CBS's persuasive power should not be confused with Special Counsel Fitzgerald's prosecutorial power. Burkett had a genuine freedom of choice that sources facing a federal criminal investigation typically lack.

Should The Fact that the Source Committed a Crime Make a Difference?

In addition to the issues they raise about sources' waivers of confidentiality, these two scandals have another commonality, too: Both seem to involve crimes committed either by the sources themselves - or by the sources' own sources.

In the Plame scandal, those who intentionally leaked her identity are by definition criminals - as long as they knew she was not only a CIA agent, but a covert agent, which should have been obvious.

What about the sources in the CBS/National Guard documents scandal - such as Burkett, and whoever was in the chain of people who passed the documents on to him? There, the situation is more complicated. It's clear that the intentional provision of false documents to a news agency is state law criminal fraud, and very likely also the federal crime of mail and/or wire fraud. But it's not clear who committed these crimes.

Burkett claims he did not provide false documents on purpose. Instead, he seems to have suggested he was hornswoggled by someone named Lucy Ramirez. Perhaps Ramirez herself, too, is innocent. But somewhere down the line, it seems that someone must have intentionally fabricated the National Guard documents, and must have done so knowing they would ultimately be provided to a news agency. And that is criminal fraud.

Let's assume, for now, that both Pincus's source, and Burkett, indeed committed crimes. Should they then lose their confidential source protections for this reason alone - apart from the waiver issues I have discussed above?

As I discussed in a prior column, some may reasonably answer yes. When a confidential source makes a reporter not only his protector, but his accomplice, he may be violating the source-reporter trust.

Moreover, when a source is contacting numerous reporters to try to get the word out, in order to serve his own political objectives, one could reasonably question if the source's communications truly deserve the term "confidential." This seems to have plainly been the case with the Plame leakers. It might also have been the case with the National Guard documents

Yet it's important to remember that confidential source protections for criminal leakers do have at least some value, under some circumstances: What if Deep Throat's revelations about Watergate were crimes - as they may have been, depending on whether he was within (or under contract to, or in a privileged relationship with) the Nixon Administration? Shouldn't Woodward and Bernstein still have been able to offer him ironclad confidentiality assurances?

Note: For interested readers, FindLaw.com offers more information on both Kerry military records, and Bush military records. - Ed.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

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