USING LEAKS AS POLITICAL TOOLS

Revenge politics and Press freedom

ND BATRA
From The Statesman

In 2003 CIA asked diplomat Joseph Wilson to investigate whether Saddam Hussein procured uranium (yellow cakes) from Niger. Wilson found no evidence and was publicly critical of the Bush administration for making such a claim.

Immediately after Wilson’s critical report, conservative columnist Robert Novak wrote that “two senior administration officials” told him that Wilson’s wife, Valerie Plame, was a CIA secret agent working on weapons of mass destruction issues. The information was leaked to him to discredit Ambassador Wilson and to compromise his wife’s career.

The true culprit in this diabolical case is the columnist Novak, who violated the law. The Intelligence Identities Protection Act, enacted in 1982 to protect undercover CIA agents, makes it a crime to intentionally identify a covert agent.

Judith Miller, The New York Times reporter, who never published her story but might have talked with some White House officials about the leak, was subpoenaed to reveal whom she talked to. But she refused. While Miller has chosen to go to jail to protect her First Amendment freedom to gather news, another journalist, Time magazine’s Matthew Cooper, privy to the leak, has agreed to testify before the grand jury but only after **Time** handed over the source of the leak to investigators.

Recently, The New York Times wrote that it was “a proud and awful moment” for the newspaper because of one of its reporters, Judith Miller, “has decided to accept a jail sentence rather than testify before a grand jury about one of her confidential sources.”

In the USA, authorities give journalists hell by using subpoena power. Journalists cultivate confidential sources to uncover corruption; and sometimes they know more about a case than crime investigators. Jim Taricani, a Rhode Island television reporter, was put under house arrest for four months for his refusal to disclose the source of the videotape showing a state official taking bribes from an undercover law enforcement informant. Whistle-blowers leak documents or talk on the promise of confidentiality to reporters. Reporters must report if they have information that impacts society. Not to report truth would be not only complicity in crime but also an unethical and unprofessional behaviour.

Sometimes courts, and even legislatures, issue subpoenas demanding information including notes, photos and videos that have not even been published, failing which they exercise contempt power. Contempt power tends to chill freedom of the Press. Why? Because journalists would dread going behind public relations handouts to find out the truth about the misbehaviour of public men.

State shield laws that are supposed to protect journalists from unnecessary disclosures are not always helpful. “In opinion after opinion,” says the Reporters Committee for Freedom of the Press, Agents of Discovery, report, “judges fail to acknowledge any special role for the media in a democratic society, or any public interest in ensuring that the media remain impartial and disinterested both in perception and reality.”

American society, for more than four decades, has been struggling with how to strike a balance between the news media’s obligation to do investigative reporting by cultivating confidential sources and the needs of the courts and law enforcement for access to crucial information that journalists might possess.

When a journalist is the only source of information that constitutes a crucial piece of evidence in a legal case, information so compelling that without revealing its source there is a danger of justice being miscarried, in such a circumstance the source must be revealed regardless of the promise of confidentiality. The right to a fair trial is no less important than freedom of the Press. But how do you draw strike the balance?

With time, the US Supreme Court began to use a “preferred position balance theory” in deciding conflicts between freedom of the Press and other rights.

In numerous rulings, the court held that some freedoms, especially those granted by the First Amendment (freedom of speech and the Press), are fundamental to a free society and consequently deserving of more protection than other constitutional values. Nonetheless, freedom of the Press does not trump all other rights, especially the constitutionally guaranteed right of a person to a fair trial that may require access to crucial evidence in the possession of a journalist. Thus by giving freedom of the Press a preferred position in balance with other rights, the government bears the burden of proof that forcing a journalist to disclose his news source is absolutely necessary.

Bob Woodward and Carl Bernstein of The Washington Post depended upon a confidential source, Deep Throat, for their path breaking investigative reporting about Watergate that brought President Nixon down. Mark Felt, who revealed himself recently as Deep Throat, could not alone have brought down Richard Nixon. Leaks from the office of independent investigator Kenneth Starr enabled reporters to uncover the Clinton-Lewinsky affair. Corporate whistle-blowers disclose corrupt accounting practices, faulty products and other malfeasances to journalists so that society might benefit.

But what happens if a confidential source is revealed? It damages the reporter-source relationship and threatens the news organisation’s image of independence. When sources suspect a collusion between law enforcement and news organisations, trust is lost. Free flow of accurate and reliable information is choked; and power begins to corrupt.

An independent judiciary and a responsible free Press are the watchdogs of an open, secular, democratic society; and they must be kept apart. Reporters must not become tools of vindictive officials or political operatives, as columnist Novak chose to become by revealing Valerie Plame’s name.

Now that we know the truth that a source of leak was the White House deputy chief of staff Karl Rove, a trusted confidante of President Bush, let the law take its course and the guilty be punished.