Plugging the Leaks

Comments () | Published July 21, 2010

The government has battled for nearly a century to restrain the press from publishing leaked secrets. The fight usually heats up in wartime. In 1917, two days after the United States entered the First World War, President Woodrow Wilson urged Congress to pass the Espionage Act, which provided prison terms for sabotage and spying and which Wilson wanted to direct at journalists who published information that might help the enemy.

Fifty-four years later, the Nixon administration tried to stop the New York Times and the Washington Post from publishing articles on the so-called Pentagon Papers, a damning classified history of the United States’ military and political efforts in Vietnam. The Supreme Court ruled, 6–3, that prior restraint of the press violated the Constitution.

But eight months later, the Court heard arguments in Branzburg v. Hayes, a collection of cases in which reporters had tried to fend off federal subpoenas to identify their confidential sources and assist FBI investigations. One case involved a New York Times reporter who had infiltrated the ranks of the Black Panthers, something the FBI found hard to do on its own.

The journalists asserted a “reporter’s privilege,” similar to the confidential relationship between an attorney and his or her client. They argued that the government couldn’t force them to testify about their sources and what they might have told them. The court ruled against the reporters, but James Goodale, the attorney for the Times, devised a clever argument: The justices had actually created a reporter’s privilege, even though, on its face, their ruling said just the opposite.

Justice Lewis Powell had decided against the reporters, but Goodale thought he hadn’t ruled out the idea of a privilege in other cases. Powell wrote that the “proper balance” between freedom of the press and the obligation for people to testify in a criminal matter should be judged “on a case-by-case basis.” In notes written before he authored his opinion, Powell made clear he didn’t intend to establish a constitutional privilege. But Goodale saw enough wiggle room to develop a strategy. For the next 30 years, attorneys seeking to quash subpoenas argued that judges should enact a “balancing test,” weighing the interests of reporters’ pledges to sources against the government’s mandate to pursue justice. The balancing test was widely adopted, and it helped many journalists avoid giving court testimony.

Then terrorists struck the United States on September 11, 2001. The Bush administration was already hostile to a nosy press and the public disclosure of presidential records. In 2003, against the backdrop of war and secrecy, an influential appeals-court judge wrote an opinion that shattered the balancing test’s foundation.

Judge Richard Posner of the Seventh Circuit—an expert on intelligence matters and a prolific author—wrote an opinion explaining why the court had ruled against a group of authors who refused to hand over tape recordings of interviews they’d done with a source. Posner wrote that the interpretation of the Branzburg case was a fantasy. Powell hadn’t created a reporter’s privilege, and those who asserted otherwise had read the justice’s opinion “audaciously.”

Posner acknowledged journalists’ conundrum: The press couldn’t function unless reporters made good on their pledges of confidentiality to sources. But nothing in Branzburg had said that reporters had an “absolute” privilege to protect their sources, he wrote. Courts didn’t need to apply a balancing test. Instead, they needed to “simply make sure” that a media subpoena “is reasonable in the circumstances . . . . We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist.”

Posner had lowered the gate separating the government and the press. And within a few years, federal prosecutors were climbing over it.

In December 2003, a special prosecutor took over an investigation into who may have committed a crime by leaking the name of a CIA officer, Valerie Plame, to news reporters. US Attorney Patrick Fitzgerald subpoenaed at least five journalists to testify before a grand jury. The only one who refused to comply, Judith Miller of the New York Times, spent 85 days in jail for contempt of court. But Miller had never written a story about Plame, whose husband, former ambassador Joe Wilson, had written an op-ed in the Times that poked holes in the administration’s claims of weapons of mass destruction in Iraq. Those were claims that Miller had reported on for the newspaper using anonymous sources, who later proved to be wrong.

“Plamegate” was a watershed for the press, in large part because Miller fought the subpoena and lost. It established a precedent that weakened reporters’ assertion of privilege where the underlying leak might involve a crime. In retrospect, Times executive editor Bill Keller said he wondered whether the paper should have tried to strike a deal with prosecutors, one that would have prevented Miller from having to fight the subpoena and going to jail.

In May 2006, journalists found themselves facing jail time once again. A federal prosecutor subpoenaed two reporters for the San Francisco Chronicle who’d seen transcripts of confidential grand-jury testimony in an investigation of the Bay Area Laboratory Co-Operative (BALCO), which produced performance-enhancing drugs for athletes. The reporters linked well-known players to steroid use, including players who publicly proclaimed that they’d never taken drugs. The government wanted to know who had violated the rules of grand-jury secrecy and shown court documents to the reporters.

The BALCO case tested the limits of those internal guidelines that Justice Department lawyers are supposed to follow when subpoenaing members of the media. No national-security issue was at stake, nor was knowing who leaked the grand-jury information, which was a crime, necessary to establish the guilt or innocence of anyone involved in steroid use. The subpoenas were approved by attorney general Alberto Gonzales.

Mark Corallo, the Justice Department spokesman under Gonzales’s predecessor, John Ashcroft, said the prosecutors had broken the department’s rules. “This was an abuse of power,” Corallo told the PBS news program Frontline. “. . . The government just did not meet the standards set by their own guidelines. . . . This one doesn’t even come close. There’s no grave national-security matter here. There is absolutely no harm to life or limb.”

Prosecutors are famously protective of grand-jury secrecy, and at the time, allegations floated that the US Attorney himself might be the leaker. But, Corallo explained, the previous attorney general had set a high bar: The department should subpoena reporters only under “exigent circumstances,” and he took that to mean instances where national security was endangered.

Indeed, the department’s guidelines say that prosecutors should seek to verify only material that’s already published, unless the reporter may have information about a crime that the government can’t obtain through other means. That requirement fit the BALCO case, but the underlying crime involved grand-jury secrecy, hardly an exigent circumstance, Corallo said.

Corallo filed an amicus brief in support of the reporters, and he praised them for doing a public service. “These two guys, Mark Fainaru-Wada and Lance Williams, cleaned up baseball,” he said.

Before the reporters were subpoenaed, the White House Correspondents Association awarded them one of its highest honors. President Bush, a former baseball-team owner, personally thanked the reporters for their service. Ultimately, the pair avoided going to jail for contempt when their source, an attorney who had represented two defendants in the investigation, identified himself.

The gloves had come off. In the wake of the Posner ruling, the Plame case, and finally BALCO, federal prosecutors could feel emboldened in their subpoena power. And journalists, who had long figured they’d be the source of last resort for the government, now had to presume they would be among the first.