By Richard Sauber, a Washington lawyer, represents Time magazine reporter Matt Cooper in the Plame investigation (THE WASHINGTON POST, 10/04/06):
Dozens of times each day in this city, reporters grant confidentiality to government sources. Whether the terminology is “off the record” or “on background” or “not for attribution,” the result is the same: In return for information, the reporter promises not to reveal the identity of the source.
The investigation into the naming of CIA employee Valerie Plame, conducted by Special Counsel Patrick Fitzgerald, has focused some much-needed attention on this practice. Media executives have made efforts to curb the use of confidential sources and to provide additional guidance to reporters.
Unfortunately, there is still little or no attention being paid to one of the central issues raised by that investigation: How is a reporter released from the promise of confidentiality? There are no standards, no codes and no guidelines for reporters or their editors. One reporter goes to jail for want of a waiver of confidentiality that another reporter finds perfectly acceptable. One rejects a waiver as being “coerced” that another deems voluntary. One newspaper refuses to print the name of a source who has already come forward to Fitzgerald and the FBI to identify himself.
Fitzgerald’s success in identifying the government sources of information in his investigation ensures that reporters and their confidential sources will be fair game for some time. It is imperative for the press to address the circumstances under which confidentiality is waived. There needs to be a set of rules, or at least principles, to serve as a guide for reporters, editors and sources. These principles could also serve as a framework for prosecutors and judges when the public’s right to know clashes with the interests of law enforcement or private litigants.
The starting point should be a recognition that the purpose of the confidential-source privilege is to encourage the free flow of important information to the public. It is paramount that journalists keep the basic focus on the public’s right to know when fashioning guidelines for waivers. This seems especially true when confidentiality is granted to individuals for political protection rather than to individuals who fear retaliation.
The question of when a reporter is free to reveal his or her confidential source — or whether the source has “waived” his claim to confidentiality — itself divides into two aspects: How should a reporter judge whether a waiver by the source is knowing and voluntary, and what conduct by the source should constitute a waiver?
The law has already dealt extensively with the issue of waiver in the context of other privileges. For instance, the attorney-client privilege can be waived by clients so long as they are properly advised as to the nature of their actions and understand the consequences. The fact that there are pressures on clients, perhaps even economic pressures, does not generally negate the voluntary nature of the waiver.
Yet several reporters rejected I. Lewis “Scooter” Libby’s general waiver, signed with the advice of experienced counsel, as being improperly coerced. Was Libby pressured to sign the waiver or risk being fired from his White House job? Probably. But is that undue pressure that negates the knowing and voluntary nature of his waiver? Or is it more in the nature of political pressure that should not affect a reporter’s judgment about whether the waiver was knowing and voluntary? If a reporter refuses to accept a general waiver given under political pressure, how does that square with the free flow of information?
Can the source, by his actions, waive his privilege? Again, there is ample analysis of this issue in the context of other privileges. To stick with the analogy, a client waives his attorney-client privilege when he consults a lawyer in furtherance of a crime. In the Plame investigation, there was a suggestion that when the leak itself is a crime no privilege should attach. Should any leak that itself constitutes a crime be deemed unprivileged?
While the approach seems to make sense in connection with the outing of an undercover CIA agent, it makes less sense when the crime is the release of classified information. To deem every such leak unprivileged runs the risk that reporters will be aiding in the creation of an Official Secrets Act, perhaps an unwelcome outcome and one that seems contrary to the public’s right to know.
Should a reporter stand by silently while his source publicly denies being the source? Under those circumstances, it gets a little tricky if the free flow of information is the goal of protecting the privilege. Shouldn’t the public have the right to know that a statement by a government official is intentionally false?
What happens when the source falsely denies responsibility under oath or in an FBI interview? Lawyers are required to take rather dramatic action if a client commits perjury, even though the lawyer knows of the perjury as a result of privileged communication. Should journalists react differently?
These are some of the important issues faced by journalists who deal regularly with confidential sources. Unless reporters and their employers organize themselves to come up with some guidelines or standards of conduct, the blank page will be filled in by others. Now is the time to begin addressing these concerns, before prosecutors and the judiciary take it upon themselves to provide answers.