After Snowden: Privacy, Secrecy, and Security in the Information Age (2015)
PROTECTING NEWS IN THE ERA OF DISRUPTIVE SOURCES
EDWARD WASSERMAN is dean of the Graduate School of Journalism at the University of California, Berkeley. After a twenty-five-year career as editor and publisher, he served a decade as the Knight Foundation Professor of Journalism Ethics at Washington and Lee University, where he taught courses in professional ethics, media ownership and control, and coverage of poverty in news and popular culture. He lectures widely on matters of media policy and practice, ranging from industry structure to plagiarism and privacy, and writes a biweekly op-ed column distributed nationally by the McClatchy-Tribune wire. Wasserman has degrees from Yale and the University of Paris, and received his PhD from the London School of Economics. His Web site, Unsocial Media, is at http://ewasserman.com.
AS A PRACTICAL matter the news media—whatever their sense of social mission, their standards, their market reach and industrial health, their legal shields or constitutional privileges—are first and foremost dependent on their sources. That dependency means the press can’t be any better, stronger, braver, more richly informed, or more dedicated to broad public purpose than the people who swallow their misgivings, return the phone call, step forward, and risk embarrassment or reprisal to talk to a reporter. That dependency also means the press is susceptible to pressure and manipulation by sources whose collaboration is indispensable to the routine coverage of public policy and institutional performance, and who become an offstage constituency that the conscientious journalist must be ever mindful of when deciding what to report and how to report it.
Hence sources, a many-headed beast. The source dimension embraces the best and worst of contemporary journalism—the press as sanctuary and independent public servant, and the press as self-serving agency tilted toward the powerful, its journalists preoccupied with maintaining the working relationships on which their own careers depend. Those two poles of source relations have been apparent in marquee episodes of both courage and malfeasance since the dawn of the new century, from the Valerie Plame–Joseph Wilson matter a decade ago to the current spate of high-tech whistleblowers, exemplified in the ongoing Edward Snowden affair. The upshot of the discussion that will be offered here is that the whole subject of obligations to sources—a chronically neglected area of journalism ethics—is a richly convoluted and deeply perplexing matter: It telescopes the unavoidable incompatibilities reporters must negotiate between workplace necessities and public service; promotes compromises in which the reporter’s signature duty—to unearth and bring to light publicly significant information in the service of a self-governing polity—may take a backseat to expediency and workplace calculation; and leads to a powerful institutional undertow that operates to deepen the vulnerability of a class of invaluable sources whose influence is truly disruptive. In some cases efforts by the news media to protect their sources worked against the public interest by shielding high-level wrongdoing from exposure.
Now, in the post-WikiLeaks era, we’ve seen a greater role played by what I call disruptive sources. Disruptive sources challenge and defy the routines of normal journalism. These sources—Chelsea (formerly Bradley) Manning, Julian Assange, and Edward Snowden are digital-era exemplars, Daniel Ellsberg their linear forebear—are disruptive in a number of ways: they’re not on the newshound’s roster of what sociologist Gaye Tuchman called “authorized knowers,” don’t drink with the beat reporters, aren’t part of the approved social nexus out of which the standard coverage of their area of occupational knowledge normally flows. They may have no continuing benefits to bestow, no implied promise of a future flow of valued intelligence. (Indeed their value as informants may be self-liquidating, consisting of one-off affairs.) They are disruptive, too, because they have access to alternative channels through which to publish their information, and that access is an institutional threat to the centrality of the news media as the principal conduits of big news. The information they proffer is a disruption as well, because it’s both credible and challenges, implicitly or explicitly, whatever it is that reporters had previously been told. Accordingly, it raises serious questions about the adequacy and trustworthiness of the information the media had been offering. (Consider how many years of Vietnam-era reporting were found deficient and credulous once the Pentagon Papers were made public.) And, of course, because the information challenges the received wisdom, it undermines confidence in the integrity and values of the dominant institutions that the media are supposed to be holding accountable—and challenges, for instance, the degree to which secrecy classifications serve any genuine national security interests or are, instead, fig leaves to ward off public exposure and bureaucratic embarrassment.
But because this source is an outsider, not a member of the usual social nexus of relied-upon informants, it isn’t likely he or she will receive much in the way of protection or indulgence if the information provokes official displeasure. Instead, the recent spate of disruptive sources has been met with a disquieting ambivalence among the news media that have benefited from their information. Typically, the public value of the material the informants have disclosed is praised, even while their motives, psychological makeup, personal integrity, and the harm they might be doing to the legitimate security interests of the state are foregrounded in the coverage. The limits to any actual protection the media might offer are generally confined to the terms of reporter privilege, contained in various shield laws that enable journalists, under limited circumstances, to resist legal pressure to disclose the names of informants with whom they have confidentiality agreements. The reporter’s silence, however, doesn’t necessarily protect the source. In only one of the current crop of cases in which news sources were charged under the Espionage Act during the George W. Bush and Barack Obama administrations—the case of former CIA operative Jeffrey Sterling—have prosecutors pushed aggressively to force a reporter to break a confidentiality pledge and identify a defendant.
The question is whether the media can or should generalize their social role, moving to something broader and more aggressive than simply keeping their reporters safe: facilitator and even guardian of the flow of newsworthy information, defender of the ability of individuals to go public with significant knowledge that deserves wide exposure. Accordingly, what’s worth defending is the sources’ right to speak, independently of the right of the news media to report what they say. It makes little sense for the media to confine their protective response to withholding the identities of valued sources when their identities can be readily learned by law enforcement and the only outstanding issue to debate is how harshly the sources themselves should suffer in reprisal.
WHO CARES ABOUT SOURCES ANYWAY?
The idea that reporters have some general duty to protect their sources is articulated only vaguely, but it’s widely held. Jack Shafer, now media writer for Politico, referred to it in a 2005 column he wrote during the unraveling of the CIA leak investigation, which apparently drew evidence from a number of journalists, as we’ll discuss below. “If protecting sources is paramount,” Shafer wrote, “why don’t more journalists go to jail?” It was a good question, but it rested on a shaky premise. The fact is that source protection is miles from being a paramount concern for journalists. Apart from the narrow matter of upholding confidentiality agreements, obligation to sources is a poorly developed area of press ethics. The well-being of informants, and the ways that the reporting they nourish may rebound on their lives, are things that journalists worry about rarely, if ever.
Indeed, perhaps the best-known—and probably the most jaundiced—formulation of the relationship between journalist and source suggests that the reporting enterprise is essentially predatory. This was the argument advanced by Janet Malcolm in her 1990 book, The Journalist and the Murderer: “Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible.”
Malcolm’s book focused on the relationship between author Joe McGinniss and the Green Beret doctor Jeffrey MacDonald, who had been accused of slaughtering his wife and two small daughters in 1970. McGinniss befriended MacDonald, and remained privy to the inner workings of his defense team even after, by his account, he became privately convinced that MacDonald was guilty of the harrowing crimes. Eventually MacDonald was convicted, and then sued McGinniss, claiming the author had wronged him—essentially, by pretending to be his friend. (After a lengthy trial the jury was hung, and MacDonald received a $325,000 out-of-court settlement.) The journalist, Malcolm writes, “is a kind of confidence man, preying on people’s vanity, ignorance or loneliness, gaining their trust and betraying them without remorse.”
Even sophisticated sources are susceptible to the charms and blandishments of reporters, and may wrongly believe that because the journalist is friendly he or she is also a friend—that is, will act with the source’s best interests in mind. In 2010 Army General Stanley McChrystal lost his job as commander of allied forces in Afghanistan after Rolling Stone magazine published a profile of McChrystal, titled “The Runaway General.” In it, freelancer Michael Hastings, who had spent a month with the general and his staff, quoted McChrystal’s top aides—who claimed to be reflecting his views—speaking scathingly about their civilian bosses, notably Vice President Joe Biden. Hastings later expressed surprise at their candor.
Garden-variety sources pose different problems. Often they are vulnerable and unsophisticated people with outsized expectations of what publicity will do to them. They may believe that talking to the press will make them celebrities and immunize them against payback, even when they say things that are certain to infuriate people who can harm them. Encouraged by the affable reporter, they may share observations that will make them look ridiculous—as the journalist knows. One case used in ethics classes involves a woman in a small New England town in the early 1980s who was the subject of one of those perennial “first baby of the year” stories in the local paper. As it happened, she was an unwed mother, welfare-dependent, who prattled on to the reporter about how happy she was that her toddler now had a sister, and how, since she could rely on the dole, she really had nothing better to do than have another baby. The happy-face story hit the wires, and the delighted mom became a calendar girl among Welfare Queens, vilified nationally on talk radio as a social parasite.
Should somebody have nudged her, midway through her idiotic—though revealing—reflections, and pointed out that she was soaking herself with gasoline in the presence of a professional with a lighted match? True, citizens have a right to know where their tax money is going. But if source protection were truly a journalistic duty, the answer would likely be that the reporter, assuming she understood better than the source did the possible impact of publishing the comments, had some obligation to her to offer some kind of heads-up. In a general sense, reporters might feel obliged to caution people they were interviewing when they were saying things that might well hurt them, that the story they were helping create was unlikely to cure the conditions they were eager to deplore, that they were taking part in a process whose consequences were unknowable—and, above all, that they were on their own.
If source protection were understood to be a duty, vulnerable informants wouldn’t have to ask for anonymity, and reporters wouldn’t be instructed to agree to confidentiality only when sources won’t talk otherwise. Instead, reporters are admonished to name sources whenever possible. The reasoning is sensible: information from named people is more credible and verifiable, and identified sources can be held accountable for falsities. Yet when confidentiality is in the source’s best interest, shouldn’t the reporter suggest it? True, concealment isn’t the reporter’s job, and finding information is hard enough, but it’s reasonable to ask whether the superior knowledge the reporter has of the likely consequences of the source’s comments confers any obligation on the journalist. Isn’t minimizing harm an important value?
The fact is, source protection generally becomes an issue only with canny, high-level officials who use the press as another lever of influence and who insist on confidentiality. Their actual need for protection from reprisal may be dubious, but their continuing cooperation is of great value to the journalist. So in a turnabout of Marx’s principle, they get protection based not on their needs, but on their abilities. True, a thoroughgoing concern for the welfare of sources could constrain reporting in ways that would be paralyzing, and journalists can’t be both zealous reporters and PR consultants. But it’s deeply ironic that a profession that’s supposed to have special sensitivity to the underdog routinely follows practices that ignore—if they don’t aggravate—the plight of the most vulnerable people who seek its help.
In fact, the lore of journalism doesn’t have much room for sources. Instead it extols the plucky reporters, sometimes their grumpy editors, on occasion even their publishers. The fact that the overwhelming majority of sources are well-placed officials who feed the media because it’s their job makes them unlikely heroes. Yet beyond the rituals of normal news, the ability of the news media to act freely and independently of governmental or private power—when it’s doing what we most fervently demand of a free press—is meaningful only in an environment where sources have information and are willing to disclose it. Press freedom, in that respect, is nothing more than source freedom one step removed. The right of a news organization to tell what it learns is a hollow abstraction without the willingness of news sources to tell what they know. No political regime, no matter how authoritarian, would need to censor a news organization that had no independent sources, and was doing nothing but publishing reports that were officially sanctioned.
Considering how indispensable knowledgeable sources are, it’s remarkable how little affection they get and how flimsy the protections are that anybody claims for them, apart from the disputed right of reporters to keep source identities from the gaze of law enforcement. The rash of prosecutions that began toward the end of the Bush administration and intensified under the Obama White House has been conducted under the 1917 Espionage Act, but has been an assault on sources, not spies, targeting individuals because they provided newsworthy information destined for public consumption, not priceless secrets intended for foreign adversaries. Still, their plight has triggered little more than intermittent pleas for leniency rather than principled opposition based on the public benefit the leakers intended or, indeed, created. That, in spite of the undisputed reality that the informants gave news reporters secret information about governmental improprieties and illegalities that made headline news worldwide.
The media’s reticence has several causes. One is that the assault on leakers has left the press itself largely untouched. As a matter of policy rather than law, the Espionage Act hasn’t been used against the media organizations that make the leakers’ secrets public—even though it’s the publication, not the handover of information to a reporter, that irreversibly annihilates the secrecy of the information, and it’s the media’s willingness to accept and publish leaks that is the necessary precondition for the disclosures. Still, prosecutors, for the most part, are quite happy to leave the media alone. They, too, embrace the idea that even if an informant belongs in prison for handing over secrets for publication, the media organizations that actually publish them need not be taken to task. And as a matter of prosecutorial politics, as long as government agents can identify the informants through wiretaps and snooping they’d just as soon not hassle reporters. As mentioned, only in the case of former CIA operative Jeffrey Sterling has a journalist, New York Times national security reporter James Risen, faced government demands—and the threat of a contempt sentence—over his refusal to say whether Sterling was a source for a chapter in Risen’s 2006 book about a blown U.S. intelligence operation in Iran.
The forbearance of prosecutors reflects a cozy entente between government and big media: the government avoids stirring the rancor of editorialists and averts long-winded litigation full of talk about sacred rights, while the media buy themselves a KEEP OUT OF JAIL card, even if it means disregarding their sources’ safety. Moreover, it reflects the evidentiary realities of the ramped-up digital-era surveillance capabilities of post-9/11 America. As an unnamed administration official told Lucy Dalglish, then head of the Reporters Committee for Freedom of the Press, in 2011: “We’re not going to subpoena reporters in the future. We don’t need to. We know who you’re talking to.”
Again, it’s worth pointing out that as a matter of moral logic—which asks that responsibility be assigned where it belongs—ignoring what the media do with the leaked information is absurd. Whatever the current dictates of First Amendment jurisprudence, if publishing government secrets actually causes harm, rational public policy would demand that those responsible be called to account—whether they’re a former military intelligence worker or a mighty news organization. That would seem to be precisely what laws protecting national security are for. And by the same reasoning, if the publication in dispute produces, on balance, a public benefit, nobody should be punished—neither the publisher nor its source, even if classification stamps were ignored and secrecy rules violated.
But disruptive sources have rarely been able to rely on the media for support and protection. The whistleblower who gave The Cincinnati Enquirer access to Chiquita Brands voice mails for the newspaper’s 1998 exposé of company wrongdoing in Central America was identified by theEnquirer’s parent, Gannett Co., fired, prosecuted, and lost his license to practice law. Former Brown & Williamson scientist Jeffrey Wigand was portrayed as a brave and tortured man of principle determined to expose the lethal lies of cigarette makers in Michael Mann’s movie The Insider in 1999, but he had been sold out by the media organization, CBS News 60 Minutes, that he was trying to help. In the Pentagon Papers case, after The New York Times prevailed before the Supreme Court on the narrow issue of prior restraint, its source, former RAND Corporation analyst Daniel Ellsberg, was left to his own devices to fight the federal prosecution that continued another two years. In the private sector sources face enhanced surveillance and the proliferation of so-called nondisparagement clauses, which prohibit that most reliable of potential informants—the disgruntled ex-employee—from sharing critical observations to the press. Even after legislation such as the Sarbanes-Oxley financial reforms foregrounded enhanced protections for whistleblowers, the results were meager. In 2011, investigative business reporter Michael Hudson found sixty-three ex-employees at twenty financial houses who said they were fired or demoted for reporting fraud or refusing to commit fraud; only four had been reported in the news media.
The practical realities of serving as an unauthorized source have changed, too, generally for the worse. Looking at digital-era news practices, it’s apparent the overall environment for sources has deteriorated, and potential informants have better reason than ever to keep silent. Consider the channels through which reporters and informants communicate. News organizations routinely post e-mail addresses for their reporters, but who believes an e-mail to a journalist is private, in the way a phone conversation was a decade ago? Can reporters even safeguard their own electronic correspondence and keep it from their bosses? And how many proprietors would pay to fight to block an outside litigant’s attempt to see that correspondence—even one revealing major illegalities—if the source had violated a gag agreement he or she was pressured to sign on his or her way out the company door?
To be sure, not all sources are created equal, as we will see in a moment in the discussion of signature cases of source defense that exceeded the bounds of clear public benefit. Many informants are essentially professional conduits, sophisticated in using, managing, and gulling journalists. They’re seasoned public relations pros who understand the rewards and risks of media interactions. Often they’re officials who are in the game, who know how to negotiate terms beforehand, and who know that their continuing value to the reporter will usually guarantee they’ll be handled with consideration. As they are.
The source who’s imperiled isn’t the special ops commando, it’s the citizen soldier, the average Joe or Jane who has significant information the public should hear, but whose collaboration is a one-off thing; this person won’t ever be on any reporter’s speed dial. This is the source who steps from obscurity off a cliff into public notoriety, hoping the landing will be soft, maybe expecting that publicity will confer protection, believing that speaking out is the right thing to do. Often these sources are vulnerable and unsophisticated people with outsized expectations of what publicity will do to their lives. They may believe that talking to the press will make them celebrities and immunize them against revenge, even when they say things that are certain to infuriate people they probably shouldn’t anger. These sources aren’t honored in the press ethics books, and sociologists don’t bother studying how often they get hurt. The absence of empirical data about the experiences of different categories of news sources is remarkable, since journalists routinely make judgments based in part on how they imagine their editorial decisions will affect the individuals whose collaboration they’ve relied on. Yet reporters know almost nothing about the aftermath, and neither the media nor the academy cares enough to find out.
Still, heedless of that indifference and of the risks they run, sources continue to come forward. Many, no doubt, are motivated by the wish to settle scores, and hope that the coverage they’re spurring will rally support for their causes. But some understand that talking to the press is what a responsible, thinking, caring person does. It’s an action that belongs among the irreducible elements of being a citizen, alongside the right to vote and the duty to give evidence in court. For all that, it’s not anything that’s included in civics books—at best, textbooks will mention how important it is to read the news, not participate in creating it—and whatever training in the rudiments of citizenship our educational system offers almost certainly omits any mention of it at all. Instead we’re left with the media presenting the news as something they produce unaided so they can continue to brandish the First Amendment as if it’s a private license issued for their benefit, ignoring the fact that without sources the press freedom clause is a dead letter.
SOURCES AND BEATS
That said, the untutored civilian who steps forward to disclose headline-grabbing revelations of great public import is the exception to the normal rituals of reporter-source interaction from which routine news flows. Those interactions, more often than not, take place in the context of beats. And the logic of beats encourages a troubling codependency in which the journalist must make trade-offs between news values and the demands of the network of source relationships that is indispensable to the production of normal news. The upshot is that reporters develop powerful reasons of self-interest to be excessively protective of valued sources. Hence the paradox: The lack of concern for source welfare is a problem when it comes to ordinary citizens and whistleblowers, but excessive concern for the well-being of professional sources is corrupting.
Some years back a reporter with a small news organizations who was posting to an ethics site I took part in wrote in with a dilemma that in its essentials will be familiar to many reporters: a colleague of hers on the police beat had learned of minor wrongdoing involving the town’s cops, but publishing a story on it would come at the cost of the reporter’s continued access to useful sources within the police department. Worse, she said, her state’s laws allowed police to withhold practically all information about investigations that haven’t brought arrests. “This means that reporters have to keep up a good relationship with officers in order to get anything on unsolved crimes, no matter how small or how serious,” she wrote. So the colleague had to choose between sitting on a perfectly newsworthy story that would embarrass the sources she relies on and destroying her effectiveness on the police beat.
That conundrum is more than an occasional problem for a small-town reporter. It has been institutionalized into a routine reality traditional journalists face, thanks to the still-robust reliance on beats to cover the country’s most powerful institutions, private and public. The upside of the beat system is clear. It encourages journalists to develop a depth of expertise so they can report knowledgeably on topics that require focus and specialization to understand and explain. But the beat system also requires reporters to get to know the people who control the information their coverage depends on, so they can call on those sources and secure the necessary information from them. And that’s where the problems begin. The reporter’s success in covering his or her beat depends on the cooperation of the people being covered—and not just their knowledge, but their goodwill, too.
If you deliberately set out to devise an arrangement less conducive to tough, adversarial reporting, it would be hard to beat beats. And, indeed, bird-dogging the powerful wasn’t the reason the beat system arose in the late nineteenth century. Instead, beats solved two problems: ensuring reliable conduits for official information to flow from leading institutions of government and business, and establishing consistent, low-cost sources of raw news for the burgeoning mass-circulation press. Under the beat system, reporters turned up at appointed times and received the news of the day. The notion that good coverage required deep understanding and specialized expertise came only later. What came first was the wish for a stable network of cooperative relationships, which would work to the advantage of the subjects of coverage, news organizations, and, to some degree, the public.
Of all the improper influences on the flow of publicly significant news—from commercialism to deliberate disinformation—one that is rarely mentioned for its corrupting effect is the beat system. The wisdom of beats rests on the idea that journalism can flourish in a setting where professional success utterly depends on the continuing cooperation of the same people that the journalist is supposed to badger, provoke, expose, and, in sum, hold accountable on the public’s behalf. And that is, of course, illogical. Seen from that perspective, we shouldn’t be surprised that journalism is so often timid and reverential to sources; the miracle is that journalists are ever tough and courageous, that beat reporters do defy their sources. However, that’s a mark of their own guts and ethical maturity, and of the presence of determined informants within the institutions they cover. It’s not testimony to the wisdom of the system within which reporters operate. Beats encourage a workplace in which asking frontline reporters the question—“What is the best story you know about that you cannot write?”—would likely bring embarrassing answers.
Would journalism suffer if beats were abandoned? Running a staff would be harder, but life could get interesting. Time and again great stories have been broken by outsiders with clear eyes, who owed nothing to the informants who feed and water the beat reporters. Watergate didn’t come out of The Washington Post’s political staff, the My Lai massacre wasn’t uncovered by a Pentagon correspondent, and the White House press corps was complicit in the disinformation campaign leading up to the Iraq invasion.
As a source of powerful conflicts of interest for reporters, beats achieved an apotheosis during the 1992 Gulf War when the Pentagon enforced, and the news media largely accepted, a requirement that correspondents be not just accredited but “embedded” in designated military units. That took source dependency to a new level, in which the reporters were literally reliant on the troops they were covering for their physical safety. By the time of the 2003 invasion of Iraq, embedding had become the norm for U.S. correspondents. The coverage that resulted, in my view, had a triumphalist glow, paid little attention to civilian suffering, and did little to anticipate the subsequent collapse of the postwar regime into chaos and internecine war.
Solicitude for sources and its power to corrupt reporting reached a different high point in 2012 during a flap over quote approval, exposed in a disturbing New York Times report about a newly clamorous insistence among top politicos on having the last word over what was actually published from interviews they gave. “Now, with a millisecond Twitter news cycle and an unforgiving, gaffe-obsessed media culture, politicians and their advisers are routinely demanding that reporters allow them final editing power over any published quotations,” the Times reported. Officials were mentioned who red-penciled obscenities, squeezed back long-winded comments, and insisted on deletions, not because they had been misquoted, but because the remarks were deemed ill-timed or tactically unwise. “Organizations like Bloomberg, The Washington Post, Vanity Fair, Reuters and The New York Times have all consented to interviews under such terms,” reporter Jeremy Peters wrote.
To be sure, there’s something to be said for source consent, if the alternative is a practice under which interview subjects completely surrender any and all control of their words the moment they utter them. This might be called the Mouse Trap Model: The lid slams shut, and even if moments later the source has speaker’s remorse—or has unwittingly uttered nonsense—the words pretty much belong to the reporter. As a source, you’re of course grateful when reporters read back what they’re going to use from your interviews. Sometimes you’ve been misheard, and sometimes your comments—once stripped of tone and inflection—don’t really say what you were trying to say, so you suggest changes. The objective of an interview, after all, isn’t to record stenographically whatever you say, but to convey what you mean. That’s a slippery proposition, but usually the point is to learn somebody’s views, not to catch him or her sounding foolish. Because few people speak in well-turned prose and most people grope and fumble, the idea of a reporter’s treating an interview as a collaboration toward a common goal—clarity—isn’t a terrible thing. Seeking source feedback beforehand is an excellent way to avoid both factual errors and, worse, the mistakes of context and meaning that routinely make even accurate reports misleading and infuriating. (Indeed, different media have long given sources greater regard than the traditional Mouse Trap Model suggests. Magazines employ fact checkers, who read back comments and characterizations to unearth substantive and interpretive problems. Some documentary filmmakers explicitly invite collaboration from their subjects: If the producer is telling “their” story, shouldn’t they have a hand in shaping it?)
This controversy, however, wasn’t about clarity. It was about strengthening official control over news to where the idea of an independent, adversarial press becomes yet another fairy tale beloved by civics teachers and retired editors. Not only were these prized sources deciding when they would talk, what they would say and to whom; not only might they agree to talk only if certain topics were off-limits and they were allowed to set conditions on how they could be identified—now they were getting yet another concession: They were permitted to meditate over their comments, consult with advisers, and change any they disliked, regardless of how unintentionally illuminating the original remarks might have been. The controversy took another turn when it was disclosed that a Washington Post reporter had sent drafts of a lengthy article on higher education in Texas to certain of his sources, and then incorporated some of their suggested changes into the version that was published.
Naturally, the value of source feedback can’t be discounted. The concern, however, is over relinquishing a vital area of editorial independence and knuckling under to the already vast power of well-placed sources. There’s a huge danger of compromise and corruption, once certain people who figure in coverage are given a seat at the editor’s desk and invited to negotiate details of that coverage. And the fairness question looms: which sources are invited and which are left out? Won’t this practice become another avenue for the already influential to wield yet greater influence? At a minimum, it would seem readers need a heads-up. If interviews are filtered through a post-facto, external editorial review in which comments that will appear as impromptu were actually little more than prepared statements, the public should know. Likewise, if people who figure in a story have a backstage role in critiquing and reshaping that story, their input should be signposted. A more collaborative model may have its strengths, but none of them matter if it’s introduced furtively to a public that would be shocked to learn that’s how the game is being played.
THE CIA LEAK AFFAIR
Hence, unlike the case in the current wave of Espionage Act prosecutions, it’s a problematic solicitude for the well-being of sources—certain sources, anyway—that has been the hallmark of the most noteworthy affairs of recent years involving journalists and their informants. We’re going to look at three such cases. In two of them, the news media served as conduits for disclosures that though unauthorized and possibly illegal, came from official sources and were intended to harm relatively powerless adversaries. The first of those cases involved CIA operative Valerie Plame Wilson and her husband, former ambassador Joseph C. Wilson IV; the second, nuclear scientist Wen Ho Lee. A third high-profile case concerned leaks from the BALCO (Bay Area Laboratory Co-Operative) grand jury investigating doping in professional sports. It didn’t involve shielding public officials, but still foregrounds one of the underlying issues in source protection: whether journalists should weigh their own responsibility if they knowingly help sources pursue problematic aims.
The Plame Wilson affair began in February 2002, when Wilson, a retired career diplomat, was sent to West Africa by the U.S. Central Intelligence Agency to investigate rumors that Iraqi ruler Saddam Hussein’s regime had been trying to buy yellowcake uranium from Niger for a nuclear weapons program. Wilson reported back that he found no evidence of such an effort. Nevertheless, President Bush in his State of the Union speech in January 2003 specifically cited Iraqi attempts to buy uranium in Africa as evidence of Saddam’s hunger for strategic weapons, a principal justification for the preemptive war that followed in March. In July, as the nonexistence of such an Iraqi weapons program was becoming glaringly obvious, Wilson wrote an op-ed column in The New York Times wondering aloud why the administration had advanced claims that he, as its designated investigator, had months before determined were baseless. “I have little choice but to conclude that some intelligence related to Iraq’s nuclear weapons program was twisted to exaggerate the Iraqi threat,” Wilson wrote. A week later syndicated columnist Robert Novak, apparently trying to cast doubt on Wilson’s bona fides, wrote that the ex-ambassador got the assignment to Niger only thanks to his wife, Valerie Plame. Novak described her as “an Agency operative on weapons of mass destruction.” In fact, she was a veteran intelligence agent with extensive experience in foreign postings under nondiplomatic cover. In short, she was a U.S. spy.
After Novak’s column ran, Wilson and others charged that Plame’s cover was deliberately blown to discredit her husband’s uranium allegations and to depict him as the thinly qualified beneficiary of her backroom influence-peddling. This suggests that Plame was exposed as a political action calculated to dampen dissent within the government, that Novak was the instrument by which that action was taken, and that his confidentiality pledge to his source was an element essential to the success of the action, since it enabled the question of whether Plame’s cover was blown as part of a calculated, high-level administration scheme to go unanswered.
Depending on the circumstances, exposing an undercover U.S. intelligence agent can be illegal under the Intelligence Identities Protection Act of 1982, and anger over Plame’s outing compelled the White House to name a special prosecutor to investigate the leak. The investigator ultimately concluded the law hadn’t been broken. Before then, however, prominent members of the Washington press corps were subpoenaed to testify as the prosecutor attempted to determine which official first told of Plame’s job, since Novak was apparently not the only journalist to whom that information was disclosed.
Ultimately, New York Times reporter Judith Miller, who never wrote about Plame, went to jail for eighty-five days for refusing to identify the origin of notes she had taken that suggested she had been told of Plame’s identity, and I. Lewis “Scooter” Libby, chief of staff to Vice President Dick Cheney, was found guilty of lying to investigators looking into the leak. The full ensuing spectacle involved a number of troubling episodes, including the editorial chief of Time Inc., Norman Pearlstine, overriding the objections of Time magazine reporter Matthew Cooper and handing over Cooper’s notes to prosecutors; Washington Post reporter Bob Woodward testifying about how and when he learned of Plame’s identity; and stories of reporters pleading with their sources to be released from promises to keep their identities private. The upshot was a shabby affair in which source confidentiality was exposed not as a solemn pledge to enable public illumination, but as a cozy background condition for routine interaction among chums at the highest levels of government and media. Reporters flirted with jail time to safeguard the right of senior government officials to endanger a blameless CIA agent whose husband embarrassed the administration by telling the truth. Lost was the question of whether a source was deserving of the same reporter solicitude irrespective of the purposes for which the protection was being used. In this case, the leaker wasn’t a whistleblower, seeking safety from reprisal for exposing official wrongdoing; it was the reprisal itself that was being protected, and the actual source of the initial leak was never exposed.
WEN HO LEE
A second case in which source protection was brandished as a cornerstone principle of press ethics, but was used to conceal behavior by government officials that was illegal and unconscionable, involved a Los Alamos National Laboratory nuclear scientist named Wen Ho Lee. He was charged with espionage in 1999 for stealing secrets on behalf of China in the early 1980s. Lee was never tried. In 2000 he ended up pleading guilty to a single charge of wrongly downloading classified documents; the fifty-eight other charges were dropped, and the federal judge in the case apologized to Lee in open court for his treatment, which included 278 days in solitary confinement. (President Clinton said he was “troubled” by the handling of Lee.) Lee then sued the government for illegally leaking private information from his personnel files to reporters and tried to find out from reporters which officials had lavished them with material meant to damage him. The reporters refused to say.
In 2006, after seven months of negotiation, the U.S. government and five news organizations agreed to pay Lee $1.64 million to settle the suit. The cash settlement was funded half by the government, and half by the outfits that made use of the leaked information: ABC News (The Walt Disney Co.), Associated Press, The Los Angeles Times (The Tribune Co.), The New York Times, and The Washington Post. The news organizations weren’t defendants in the suit, but faced the likelihood that they would be pressured to disclose their sources if it went to trial. In a joint statement, the organizations said they settled “to protect our confidential sources, to protect our journalists from further sanction and possible imprisonment and to protect our news organizations from potential exposure.” Protecting innocent defendants wasn’t mentioned. Instead the media organizations used the case to editorialize in favor of statutory protections that would enable reporters to keep confidential sources secret. “Media sources need a shield,” declared The Los Angeles Times. To the editorialist, the most troubling issue in the entire affair was the fact that the news media lacked firm ground on which to claim the right to convey defamatory information about a private individual against an overmatched defendant in a groundless national security case.
Here was an instance where the media coverage of a federal prosecution was enough to end the defendant’s career and destroy his reputation, long before the merits of the case could be fairly weighed. Lee couldn’t sue for his good name and he wasn’t likely to get his job back, so he sued over the violation of his privacy rights constituted by the leaks against him, which apparently were fueled by anti-Chinese animus and promoted by political operatives who believed the Clinton administration was impeding the case against him because it feared displeasing the Chinese government. The media organizations said they paid him only to keep their ability to protect confidential sources from being eroded. That was a familiar line, and much of the commentary about the affair focused on whether the media would henceforth be vulnerable to payoff demands from other plaintiffs who subpoenaed reporters to get at their sources and were willing to settle for money in exchange for withdrawing their demands. (The New York Times, for its part, was eager to say that its participation in the payment arrangement did not mean it was retreating from its long-standing policy of never settling libel suits.) But circling the wagons around the principle of source protection gave the media an easy, if formulaic, out. It enabled them to avoid considering whether there might be anybody else in this affair who deserved protecting, namely the hapless Dr. Lee. It also shelved the more prickly question of whether there might be times when cooperative, truthful sources turn out not to deserve protection, perhaps because of the harm that they’re trying to do, which may warrant not concealment but exposure.
It’s a perplexing question, but what about the plight of individuals whose lives and livelihoods are in the hands of powerful public servants who may be headstrong, vindictive, mendacious, and wicked, and who are supposed to be held in check—not shielded—by a vigilant and dedicated press? When the media decide that predatory bureaucrats with a good enough story to tell are entitled to professionally, and even constitutionally, sanctioned protection, regardless of their motives and their recklessness, where does that leave the citizenry? And what happens to that core principle of accountability—supposedly a mainstay value of public service, whether in government or media? Confidentiality promises are powerful and complex things. Sometimes brave and desperate people take great risks to expose important wrongdoing, and the reporters who shield them accept legal jeopardy. But it would be morally obtuse to fail to distinguish that from the more common scenario where the powerful use the press first as pack animals and then as guard dogs.
The Wen Ho Lee affair ended in a settlement, but it was far from settled. The intrigues that destroyed his career may never be exposed, because the media organizations that are best qualified to uncover those undertakings were instead parties to them, hopelessly compromised. Nurturing a source may be a professional necessity, protecting the source may sometimes be a public boon, but there are other duties, such as exposing the truth, that may be even more imperative, and which don’t vanish in the glare of a self-serving agreement to keep an undeserving source secret.
WHEN THE SOURCE IS TRUTHFUL BUT EVIL
A third case that suggests the moral limits of source protection doesn’t involve an especially well-placed public official but instead showcases an issue underlying all of these cases: whether reporters take on any responsibility for the stratagems their sources use them to further. In December 2004, San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams broke a sensational story based on secret grand jury testimony that Fainaru-Wada later described as “a game-changer.” There, Barry Bonds, one of the most accomplished players in the history of baseball, admitted to using two drugs that were at the heart of a years-long federal probe into the Bay Area Laboratory Co-Operative. Bonds also insisted he didn’t quite know what the drugs were, and it’s that claim that later got him convicted of perjury. The two reporters’ December 2004 Chroniclestory recounting Bonds’s admission blew the doors off the sports establishment. It led to congressional hearings and a sweeping national effort to address the abuse of drugs by athletes at all levels, from high school on up. It also led to a two-year federal investigation into how the supposedly secret testimony found its way to the Chronicle reporters in the first place. The reporters refused to say. In 2006 they were subpoenaed to testify about their sources, but they held firm with the support of the newspaper’s owners, the Hearst Corp., which spent more than $1 million defending their silence. Finally, in February 2007 the FBI found the source without their help and arrested a Sacramento lawyer named Troy Ellerman. He admitted letting Fainaru-Wada review and copy from transcripts of grand jury testimony by Bonds and three other athletes in June and November 2004. The government then dropped its efforts to get the Chronicle reporters to testify, and the threat of an eighteen-month sentence for contempt of court vanished. Of course, the newspaper was jubilant, and said as much in a lead editorial, “They stood tall for a free press.” The reporters’ determination to honor their confidentiality agreement with their source was generally praised, and the months of judicial pressure were cited as further reason to enact a federal shield law to insulate journalists from naming sources to whom they had pledged secrecy.
However, beyond the illegality of the leak, the Chronicle reporters’ dealings with their prized source contained disquieting elements. Ellerman, it turns out, represented BALCO’s founder and another executive—in other words, he defended clients who were targets of the grand jury investigation. Why would a defense attorney break the law to publicize highly incriminating testimony that couldn’t help but reflect badly on his own clients? After all, the leak indicated that the grand jury had struck pay dirt and unearthed evidence of serious wrongdoing that was very likely traceable to them.
The reason? He was trying to sabotage the investigation. As the Chronicle reported: “While he was secretly leaking the transcripts, Ellerman acknowledged … he was publicly complaining to a federal judge about the leaks, and he even filed a motion in October 2004 to dismiss charges, arguing that the disclosures made a fair trial ‘practically impossible.’” Ellerman initially leaked transcripts in June 2004 not because he wanted the facts made public, but because he hoped that the leak would be blamed on a “vendetta” among prosecutors and would thereby constitute legal grounds for scuttling the grand jury investigation.
He went public with his denunciation of the prosecution several weeks before he allowed Fainaru-Wada to see the grand jury transcripts that produced the explosive December 2004 article focused on Barry Bonds and other top ballplayers. Hence, Ellerman’s purposes were clear at the time he provided access to the Bonds testimony for the December story. While the refusal of the Chronicle reporters to identify their source was generally acclaimed, this darker backstory brought serious criticism. “A defense attorney leaking grand jury testimony is suspicious, but one filing motions to dismiss based on his own leaks is absolutely dangerous,” columnist Jack Shafer wrote. In The Los Angeles Times, Tim Rutten wrote: “Conspiring with somebody you know is actively perverting the administration of justice to your mutual advantage is a betrayal of the public interest whose protection is the only basis on which journalistic privilege of any sort has a right to assert itself.”
At its core, this affair raises a question of professional conduct that makes journalists wince: Are reporters on solid ground when they focus exclusively on doing their job properly—ensuring that their published work is accurate, fair, and has the requisite public significance? Or are they morally responsible for unsavory stratagems that their source advances through their journalism, especially when they are fully aware of the stratagem, and, as in the BALCO case, are indispensable instruments of it?
This is the Dilemma of the Evil but Truthful Source, and it resonates through all three of these cases: The journalist is given solid information of public importance, and understands the reason for the gift is to further a private purpose that, from the perspective of public policy, fairness, or basic morality, is problematic. Does the journalist’s professional obligation to put that information before the public entitle him or her to ignore that private agenda? It’s fair to say that reporting is hard enough without taking on a further obligation to interrogate sources about their intentions. Said Mark Feldstein, a veteran broadcast news reporter, author, and professor at the University of Maryland: “The public is the poorer if reporters get high-and-mighty and say, ‘We accept only leaks with pure motives.’” And, for that matter, what would constitute the requisite purity of motive? Would the Capitol Hill staffer qualify if she leaked information to discredit her boss’s chief rival for a congressional leadership position? To be sure, that’s sleazy. And which of numerous motivations are we interested in? Doesn’t any source act routinely from a number of motives, ranging from self-promotion and settling old scores to saving the world? Which of them needs to be ethically permissible to entitle the reporter to use the information with a clear conscience? And which would argue for declining the highly newsworthy information—and leaving the public uninformed?
And yet the dilemma remains. We don’t normally allow the explanation “I’m just doing my job” to erase responsibility if the routine performance of duties knowingly causes harm. Suppose a shop owner sold a knife to a man who declared he intended to kill his landlady. In his defense the proprietor says he has a business to run and a payroll to meet; his work serves the higher purpose of maintaining a robust market economy; he can’t be bothered by speculation about his customers’ motives; and besides, for the most part one can safely ignore most of what people say anyway. Still, there’s good reason to find the shop owner’s narrow focus on his job questionable and conclude—as a matter of ethics if not of law—that if the landlady died he would have some explaining to do.
The difficulty of ascertaining motive is real, and sometimes motives are elusive, sometimes they are concealed, often they are manifold. However, the BALCO case hinges on motivation not as a topic of abstract psychological inquiry, but as a source’s deliberate pursuit of a plausible and highly questionable consequence—derailing an apparently meritorious investigation, a consequence that the attorney concluded might be accomplished with the help of the reporters. He secured that help by offering them irresistibly newsworthy information of broad public appeal. So the dilemma doesn’t vanish because motives may be unknowable or hard to ascertain. Sometimes that’s true, but much of the time, reporters know quite enough. And they hold their nose and proceed anyway, because they believe it is their duty to do so. This is morally questionable. Journalists are not free to act as if the private stratagem they are furthering did not exist. They may do their story anyway, and that may be the right thing to do, but they must accept that by doing so they will be complicit in that stratagem. This suggests that they must be satisfied that the wrongness of their complicity is redeemed by the wider public benefit of the secrets it unlocks.
Did BALCO meet that test? Hard to say. The Chronicle stories triggered outrage and reform. Fainaru-Wada argues that the investigation was shaping up like a conventional drug case, with lower-level wrongdoers—the drug users—granted leniency and, in this instance, anonymity in exchange for turning in the suppliers. The fear was that here the users were the star athletes, the most newsworthy and most publicly significant malefactors, and if they escaped exposure sports might well go unreformed. But it is hard to see how that concern justified actions that might have sabotaged an apparently determined investigation. If indeed the grand jury later handed up indictments that amounted to a whitewash, the testimony leaked by Ellerman would have been even more newsworthy then, and could have been published without obstructing the inquiry. The Dilemma of the Evil but Truthful Source recasts a problem familiar to many reporters: how to reconcile their broader ethical responsibilities with the duties that journalism demands. The journalist who can justify his or her actions only by ignoring wider obligations those actions seem to defy is likely to be acting ethically neither as a journalist nor as a person.
SOURCE PROTECTION IN THE DIGITAL ERA
The upshot of the foregoing discussion is that the normal dynamics of reporter-source relations are fraught with complexity and inconsistencies. The picture that emerges is of sharply divided practices within the news media when it comes to the rights and privileges of sources. The notion that source protection has core standing among the tenets of journalism ethics is an appealing one, but crumbles on closer inspection. Informants whose once and future value as news sources is deemed great can expect forbearance, editorial flexibility, and, if tracking back the information to them might cause discomfort, a determination to keep their identities secret. Such practices as quote approval, embedding, and even routine beat-tending exemplify an unavoidable tendency for journalists, whose most fundamental nutritional need is information, to nurture the sources of that nourishment. When it comes to the one-off sources, the ones who are momentarily indispensable, there’s little to suggest a comparable duty of care among reporters. The understandable journalistic preference for full attributions will incline the reporter to identify them by name unless they demand concealment as a condition for talking. Possible downstream consequences will be soft-pedaled, while possible benefits to such sources are likely to be scrutinized critically. (It’s notable that the recurrent dustups over whether sources should be paid invariably concern largesse shown to ordinary people caught up in fleeting scandals. These are people who have no way to cash in on their media exposure the way that professional sources do, through enhanced prestige or name recognition or by having their interests advanced—benefits that constitute valuable compensation but are rarely seen as corrupting.)
In 2010, with its release of the classified 2007 gunsite footage of a U.S. helicopter killing civilians on a Baghdad street, WikiLeaks inaugurated a new era of relations between journalists and sources. For the first time global news organizations were confronted with an independent information provider of immense scope that was without ties to or dependency on existing national governments and which had no corresponding incentives to nurture relations with official news sources. The marquee sources of the WikiLeaks era—namely Chelsea Manning, Julian Assange, and Edward Snowden—constitute an influence on journalism that is profoundly disruptive to the patterns of source-reporter interaction discussed earlier:
• As sources, they’re not on any conventional reporter’s roster of people whose collaboration is a steady and predictable part of beat coverage, and they play no role in the informational network out of which routine news arises.
• They hold out no promise of a continuing flow of significant information; instead, their future as informants of any kind is under a cloud.
• The information they offer challenges what had been known publicly on a given matter.
• Their disclosures may therefore constitute a rebuke to the integrity and competence of the journalism establishment that had nourished and tended the inventory of discredited public understandings.
• They may have access to distribution channels of their own, which compete with and undermine the authority of existing news media channels.
• And because the sources emerge from outside the usual social nexus of information providers, they’re unlikely candidates for media protection if the information causes official displeasure.
Before WikiLeaks, the exemplar of pre-digital era disruption was the defense analyst Daniel Ellsberg, who leaked the Defense Department’s secret in-house history of the Vietnam War (1945–1967). Before he approached The New York Times in early 1971, Ellsberg tried to get sympathetic members of Congress to make the Pentagon Papers public on the floor of the Senate, hoping to take advantage of lawmakers’ legislative immunities. Although the Supreme Court later barred the government from stopping the Times from publishing the material, in a widely heralded First Amendment case, the legality of Ellsberg’s leaks was never adjudicated. Ellsberg himself wasn’t treated especially kindly by the media, even by his beneficiary, The New York Times, and was left to his own devices to defend himself in the Espionage Act prosecution that publication of the history provoked. He recalls ruefully Times coverage of his personal life that he says impeded his ability to raise money for his defense. The case against him fell apart nearly two years after the 1971 Supreme Court ruling only because of disclosures about illegal wiretaps and the burglary of his psychiatrist’s office by White House operatives.
The current spate of federal prosecutions of news sources began in the waning days of the Bush administration and intensified under Obama’s, and now stands at seven, including the pending complaint against Edward Snowden, who remains in de facto exile in Russia. It’s evidence of an approach to official secrecy that, by the standards of other countries, is ferocious.
Chelsea (then Bradley) Manning was arrested in May 2010 for downloading secret U.S. military and diplomatic documents to WikiLeaks, which became headline news worldwide. He was then held for nine months in a Marine brig in Quantico, Virginia, in what the American Civil Liberties Union called “prolonged isolated confinement and forced idleness,” spending twenty-three hours a day in a six-by-twelve-foot cell, and allowed to exercise—shackled—for one hour in another windowless room. He was often stripped and forced to stand naked outside his cell to be inspected, had his sleep interrupted frequently, was periodically deprived of his reading glasses, and generally was subjected to treatment meant to “degrade, humiliate, and traumatize…” Why this former intelligence clerk without terrorist connections or secrets to hide should be treated with a cruelty that no dog pound would tolerate remains a mystery. (It’s worth pointing out that Ellsberg spent no time in jail in connection with the Pentagon Papers case.) Ultimately Manning was tried before a court-martial and sentenced to thirty-five years. WikiLeaks founder Julian Assange has been under de facto house arrest in the Ecuadorean embassy in London since 2012; he has said he fears extradition to the United States, and has refused to travel to Sweden to answer complaints from two women about sexual misconduct. As for Snowden, the zeal with which the United States has pursued him was such that the plane carrying Bolivia’s President was diverted from the airspace of several European countries and forced to land in Austria in 2013 because it was believed Snowden might be aboard. If he returns to the United States to face trial he could be sentenced to life in prison.
Elsewhere, punishment for making official secrets public is less severe than penalties in the United States for driving drunk: at worst, two years in Britain and Denmark. In other Western countries, maximum punishments range from four years in Sweden and Spain, to five in Germany, Belgium, and Poland, and seven in France, according to an analysis of twenty European countries by Sandra Coliver, a legal expert with the Open Society Justice Initiative. The group has been leading a multiyear, international effort to formulate broad principles reconciling the legitimate need to keep government secrets with the no less legitimate need to hold governments publicly accountable.
Not only are penalties mild elsewhere, Coliver found, prosecutions are rare. In six countries, as of 2013 nobody in the previous decade had been convicted for disclosing state secrets. In Britain, since the 1989 Official Secrets Act took effect, only ten public employees had been prosecuted. The longest sentence, one year, was imposed on a naval petty officer who sold intelligence to a newspaper about a possible Iraqi anthrax attack. In fact, apart from the United States, the only country where prosecutions were common is Russia. There, ten government employees have been imprisoned in the past decade for four to fifteen years for making government information public. The study found that Europe’s courts seem to be moving toward backing whistleblowers strongly, even when state security is breached. In a 1996 case, a military intelligence official in Romania was initially sentenced to two years for releasing the tapes of illicit wiretaps his agency had made of journalists and politicians. However, the European Court of Human Rights ruled that he was wrongly convicted, that he was acting in good faith in exposing illegalities to the public, and that the public’s interest in learning about the wrongdoing outweighed the agency’s interest in keeping its good name.
That approach is broadly consistent with the international effort that has taken the form of a new set of legal and policy recommendations. Grandly titled “Global Principles on National Security and the Right to Information,” it’s known informally as the Tshwane Principles, for the South African district where it was put in final form. Tshwane is the work of twenty-two international organizations and academic institutions that, through fourteen meetings in various venues throughout the world, wrestled with how to balance the public’s right to significant information against their governments’ needs for secrecy. It received relatively little attention in the United States, though it has gained support from the Council of Europe. The Europeans seem to like the idea that governments should be made to explain their secrecy policies—and when those policies are defied, demonstrate that the harm done by security breaches actually justifies reprisal.
Among Tshwane’s cornerstone principles:
• The public has a right to government information, and the burden is on governments to show why they must restrict that right.
• Certain types of information are of such compelling public interest that they should be disclosed except in “the most exceptional circumstances.”
• People who expose wrongdoing “should not face retaliation if the public interest in the information disclosed outweighs the public interest in secrecy.”
• Whistleblowers should first try to address problems through official channels. And they should not disclose any more information than is necessary to bring attention to the wrongdoing—which, Coliver has suggested, is a standard that was exceeded by Manning’s own release of 700,000 military and diplomatic documents.
• Most remarkably, though, even if a whistleblower violates those guidelines, Tshwane asserts that any penalty should be proportionate to the damage done. “Government authorities, in order to justify any punishment, should undertake an investigation, and should explain publicly, in as complete detail as possible, the actual and specific harm caused,” Coliver writes.
That absence of a showing of harm is a deeply disturbing element of the U.S. secrecy panic and the frenzied counterattack against the people behind the disclosures. For all the gnashing of teeth over the Manning leaks, for all the fevered denunciations of Snowden’s exposing domestic surveillance, nobody has pointed to actual damage—to national security, to counterterrorism, to intelligence agents, to diplomatic initiatives, to the confidentiality of top-level parleys. Indeed, a reasonable case could be made that, say, the diplomatic cables that Manning and WikiLeaks made available to news organizations in 2010 were of considerable public benefit (and of particular benefit to the United Sates, in that they couldn’t fail to insert U.S. policy priorities and perspectives into headlines worldwide). At issue were closely observed dispatches that had bearing on a trove of political questions with global impact, among them:
Did Arab leaders privately share Israel’s fears of Iran?
Had Russia’s Vladimir Putin squirreled away so much graft that he’s the richest man in Europe?
Was Iran approaching Venezuela’s then-President Hugo Chavez in hopes of finding uranium for an Iranian nuclear program?
Did the United States pressure Spain to derail an investigation into the Army’s 2003 killing of a Spanish newsman in Baghdad?
Was the Mexican military a reliable ally in the war on drug traffickers?
Was Argentina coveting the Falklands/Malvinas islands again, this time with Antarctic oil in mind?
Might China prefer a Korea reunified under Seoul to the uncertainties of a volatile North Korea in perpetual collapse?
It’s true that Manning violated oaths and broke laws in downloading the low-grade military and diplomatic secrets he provided to WikiLeaks. But the world’s leading news organizations then evaluated that material and decided to make much of it public because of its “immense value,” as then New York Times executive editor Bill Keller wrote. So, if these news media believe they were right to publish the material Manning gave them, how could they stand aside as he faced life in prison for giving it to them? If they did right and the world benefited, did he do wrong?
The news media’s silence concerning Edward Snowden is even more disturbing, since his disclosures exposed the National Security Agency’s monumental, undiscriminating, intrusive, and illegal monitoring of civilian communications in the United States and abroad. Under the program code-named PRISM, Snowden disclosed, the NSA and FBI linked to the central servers of nine major Internet companies, downloading extensive materials so that foreign targets could be tracked. After the PRISM leak, an even more disturbing portrait emerged of close coordination between Silicon Valley and the security apparatus. As a New York Times account reported, “both hunt for ways to collect, analyze and exploit large pools of data about millions of Americans”—one for intelligence, the other for money. No less important, Snowden’s leaks also indicated the NSA had been sweeping up data for seven years on domestic U.S. phone traffic, something previously assumed to have been outside the agency’s remit. Unlike the WikiLeaks files, the Snowden material did not, by and large, consist of sensitive information the spymasters had scraped up, but instead illuminated a much more serious matter—their breathtaking capacity to scrape. That capacity, it seems, is unimaginably broad and deep, and encompasses practically all public communication systems—from phones to e-mails, corporate intranets, social media, the world’s mightiest search engines, “the cloud”—most anything digital. The picture that emerges is of a stupendously vast surveillance system, one that U.S. intelligence agencies have been so successful in fashioning that their capability has been woven into the infrastructure of the Internet itself.
This was big, and the public seems to have responded. Despite vigorous denunciations by U.S. leaders, a 2013 national survey of U.S. voters by Quinnipiac University found that by a huge margin—55 to 34 percent—respondents considered Snowden a whistleblower, not a traitor. The media’s response has been less robust. An exception was an eloquent Times editorial, “Edward Snowden, Whistle-Blower,” published on New Year’s Day 2014, that urged the White House to show leniency toward Snowden and recounted the broad impact of Snowden’s defiance, including widespread public outrage, critical court rulings, internal investigations, and even a grudging nod from the White House for his role in provoking domestic debate over surveillance. The Times argued that Snowden deserves either clemency or some minimum-punishment plea bargain, and concluded: “When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government.” Now, this was some improvement over the sparse coverage of the Manning trial and the Times’s apparent distaste for WikiLeaks founder Assange, who was the subject of a scathing and borderline defamatory 2011 profile in the New York Times Magazine, written by Keller himself, which characterized Assange as peevish, contemptuous, disheveled, malodorous, paranoid, manipulative, and volatile, in almost those words.
So amid this practice of source abandonment, the Times’s editorial plea was welcome, But in several regards the media still haven’t embraced the pro-Snowden case with appropriate vitality, and haven’t gone nearly far enough toward ensuring a fair shake for whistleblowers with vital stories to tell. First, the idea that Snowden deserved a break because his “disclosures have inspired an overdue debate,” as The Los Angeles Times suggested, is a curious notion. Inspiring a debate hardly seems worth rewarding, all by itself. Lots of terrible things provoke debate. After all, 9/11 triggered major conversations about Islamist terrorism, and school shootings provoked debate about guns. Neither deserved public applause. What Snowden did was put before the public information about major government misconduct that belonged in the public domain, misconduct that constitutes, arguably, the most dangerous and far-reaching power grab of the Information Age. And he embarrassed the administration into reluctantly addressing questionable and invasive practices, which officials had lied about. That’s not inspiring a debate; that’s calling government to account.
Second, it’s troubling that the news media haven’t owned up to their own complicity in the affair. Snowden could do nothing without them. The media don’t just report on his leaks; they are the indispensable means by which his leaks reach the world, the whole reason his leaks matter. The media aren’t observers; they are Snowden’s instruments, enablers, and beneficiaries. If they truly want to defend him, they should start by acknowledging that they stand alongside Snowden as public servants, and by publishing the information he provided have affirmed his value in the most compelling way they can.
Finally, the thrust of the editorial appeal was to the conscience of the administration. That seems an obsequious position to take, the twenty-first-century equivalent of imploring the sovereign for clemency. The unstated premise of the editorial is that Snowden’s fate was in the hands of the state’s prosecutors. If true, that would only be because the United States had been emasculated by laws that prevent them from actually administering justice in cases like his. Elsewhere, if civil servants violate secrecy rules by disclosing information about what they believe is criminality by officialdom, they can argue in court that their breaches served a greater public benefit. And judges could then do exactly what they’re supposed to do—exercise judgment, and decide whether to forgive or punish the offenders. Snowden deserves a sturdier and more muscular defense, something appropriate to the enormity of the wrongdoing he has exposed, something that helps make the country safe for others who have stories the public is entitled to hear.
Yet, in the final analysis, the argument for a public benefit defense is premised on a dispassionate assessment of consequence: What indeed were the effects of WikiLeaks’ massive 2010 military and diplomatic disclosures? Did the leaks do harm or do good? As of mid-2014 nearly four years had passed; the U.S. military presence in Iraq had ended, and the dust had settled from the release of the State Department cables. The moment was more than ripe for an accounting. Did WikiLeaks demoralize dedicated officials and expose trusting intelligence assets to risk and reprisal? Or did it blow whistles that needed to be heard, embolden dissidents worldwide, fuel the Arab Spring, encourage lackluster news media to defy official controls, help chase despots from power? What’s so alluring about these questions is first, that they are answerable, perhaps not definitively, but persuasively; second, that they should be front and center in the determination of what course justice should take in setting sensible limits on official secrecy and the free speech rights of sources; and lastly, that they are just the kinds of things that journalists are trained to ferret out and report. That final point can’t be overstated. It’s the news media, if they mobilized their resources, that have the skills and the capacity to recast the entire debate over official secrecy by examining, with care and journalistic precision, the impact that the most audacious and most reviled violations of official secrecy have had.
The digital age explosion of communicative capabilities has created greater capacity than ever for both suppression and emancipation. There are no guarantees that the proliferation of channels will mean a richer availability of information with genuine public significance. That happens only if people who have that information believe it’ll be heard and welcomed, and if they can step forward with it without fear of punishment. That’s why the whole edifice of informational freedom in the digital age depends on creating an environment in which sources can speak.
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