• 
• Some highlights from this interview
• Why should reporters have a privilege?
• Why special prosecutor Patrick Fitzgerald has done "great damage" to journalism
• What most concerns reporters and editors -- it's not the Plame investigation
• Why there's been an increase in subpoenas in recent years

She is the executive director of the Reporters Committee for Freedom of the Press, a legal defense and advocacy organization for journalists working in the U.S. This is the edited transcript of an interview conducted on July 11, 2006.

When was the committee formed, and why?

The Reporters Committee got its start in 1970, at a time when the Nixon administration and even the Johnson administration had been very aggressive about going after journalists to find their confidential sources. Back then you'll recall there were a lot of undercover operations that the Nixon Justice Department was conducting, investigating anti-war activities, drug activities.

There were a number of reporters out there who were very aggressively covering these stories. Among them was a very talented, young, up-and-coming reporter for The New York Times named Earl Caldwell, who I believe was the first national reporter for The New York Times who was black.

He was based in Berkeley, [Calif.], and he had some sources in the Black Panthers. He got some information that nobody else was able to report. He got very close to them, so the Justice Department went after Earl. At that time, news organizations were not as likely to quickly come to the defense of a reporter who had been subpoenaed to identify confidential sources. ...

There were a number of reporters based in New York and the District of Columbia who said: "This is terrible. We've had hundreds of subpoenas served on the news media over the last couple of years to find out their confidential sources. Earl is really being harassed. This is a very high-stakes issue. We need to do something to defend him."

So they got together at the Georgetown Law School Library on a Sunday afternoon and said, "We need to come up with a committee of reporters to support reporters who are in this situation." It was high-profile reporters and editors such as [then-editor of The Washington Post] Ben Bradlee, Mike Wallace, Eileen Shanahan from The New York Times, [former CBS correspondent] Murray Fromson, [Common Ground author and journalist J.] Anthony Lukas, [print and television journalist] Fred Graham and [Los Angeles Times investigative reporter] Jack Nelson, people who turned out to be real lions of the industry. They created the Reporters Committee to provide support.

“The ability of the media to operate independently without being perceived as being an arm of the government is very, very important to our democratic society.”

Of course the Caldwell case was one of the three that was consolidated into ... the only case the Supreme Court has ever heard on reporter's privilege issues, called Branzburg vs. Hayes. ...

And when you say "the only case," you mean the only case involving criminal law, because there have been civil cases that --

Not that the Supreme Court has actually granted cert. Branzburg is still the case that gets cited for the proposition that you don't get to protect your confidential sources.

But that's in the case of a federal grand jury subpoena.

Correct.

It's narrow on that basis.

That's what we always argue. For about 30 years we were successful in the federal courts in arguing that you have to limit Branzburg to what the Court actually said. You had that 4-1-4 decision. If you limit it and say that Branzburg squarely says that in a grand jury context, you're probably not going to be protected.

But some very creative media lawyers, led by Jim Goodale, who was at The New York Times many years ago, were able to convince many appellate court judges in the federal courts and in the state courts around the country that Branzburg needed to be limited to that grand jury context, and they were able to convince many judges that the balancing test provided by Justices [Lewis] Powell and [Byron] White ... was actually the law that should be applied in civil cases and in trial courts.

We had a certain level of success over the years in getting subpoenas knocked out in civil cases and in criminal trials. But starting about three years ago … that all just started going to pot, as they say.

Starting in 2003.

... We got to this case in the 7th Circuit called McKevitt [v. Pallasch]. That was a situation in which three reporters who worked for newspapers in Chicago, who had been working on ... an independent book project, were subpoenaed by a court in Ireland because they had tape-recorded conversations with a witness in an Irish terrorism case.

The prosecution and the defense in Ireland said, "We need those tapes to impeach this witness." So the reporters went back and said: ... "Hey, this is not a U.S. grand jury situation. There's no real high stakes here. We shouldn't have to turn over these tapes." ...

When the local court said they had to hand them over, they said, "Well let's go to the 7th Circuit and see if they will issue a stay and consider the case." Almost immediately the 7th Circuit came back and said, "No stay." ... [The reporters] decided it's not like they were protecting a confidential source. They felt that they did what they could to avoid complying with the subpoena before the judge forced them to turn over the tape. So they said, "OK, uncle, here's the tape." So they turned the tape over to the FBI, which redacted a bunch of stuff before it turned it over to the Irish.

But in the meantime, something very strange happened. Judge Richard Posner, who's a very influential judge nationwide, decided that even though there were no briefs filed, and even though there were no oral arguments, he thought he should write an opinion.

He's a judge on the 7th Circuit.

He's a judge on the 7th Circuit. And he wrote this opinion a few weeks later and just released it and said: "I know that there's no issue in front of us anymore, but I just wanted to be clear that I've reread the Branzburg case, and all you people, all you judges out there who have been saying for the last 30 years that Branzburg provides some sort of privilege are wrong. There is no privilege in Branzburg, period."

Since he's a very influential judge, judges across the country have been looking to that McKevitt decision to just refuse to quash subpoenas left and right. ... Things have been fairly ugly ever since.

Why should reporters have a privilege that no one else has?

I wouldn't say no one else has. Under certain circumstances, they recognize testimonial privileges for doctors, psychotherapists, priests, lawyers. The law clearly recognizes that there are certain times when people need to be encouraged to come forth with information. ...

Reporters take the need to collect information and the responsibility of collecting information very seriously. To a reporter, if you make a promise, you have to keep that promise, or you're not going to be able to do your job any longer. It's that simple.

When you look at the academic literature and the case law and just common sense, there are really two main reasons why reporters feel that they need to be able to protect confidential information. One is the public needs a flow of information. There are times when the only time you can explain information to the public is if you can get an anonymous source to tell you something. ...

The other is really the independence argument. ... I think it's [that] the ability of the media to operate independently without being perceived as being an arm of the government is very, very important to our democratic society. We need to be able to assure the public that the information that we are giving them has been independently collected. And hopefully these citizens are going to take that information, study it and make an educated, informed decision at the ballot box.

Let me play devil's advocate for a minute. There was a movement in Congress 30 years ago to provide a federal shield law, and the news organizations could not agree on what a reporter was and whether a reporter should be licensed. So isn't the problem here that reporters want it both ways? ...

I agree that it's a sticky issue, and it's a difficult one. There's certainly a lot of tension there. But I disagree with your description of why the bills didn't go anywhere back then. ...

Mostly what happened was the major news organizations and the major nonprofits that represent journalism organizations couldn't agree on what it was they wanted. ... There were those folks who said the First Amendment is enough. Then there were the people like my organization, who said: "We absolutely want a shield law, but it has to be absolute. We have to have the absolute ability to protect confidential sources." There were the others -- the Newspaper Association of America and others -- who said: "You know what? That's never going to fly with Congress. We have to be willing to compromise." ...

“When you have a situation where everything is becoming secret, you have people in the government who believe that the only way they can expose some of these workings and operations of the government that might not be going very well is to tell a reporter.”

So for the last two and a half to three years, media organizations have been working very, very hard at trying to come to some sort of agreement [as to] what they will tolerate, what they want and what they are willing to give up in exchange. We still have a lot of reporters who are saying, "If you can't provide an absolute privilege for confidential sources, phooey on you." Others are saying, "Well, a little bit of protection is better than nothing."

There's nothing about this topic that's easy. It's been a very difficult couple of years. And in the meantime, we still have reporters who just keep getting slapped with these subpoenas.

So the reporters and the reporting organizations can't make up their mind as to who should be covered.

I think the news organizations have come to some sort of agreement on who should be covered. We've spent a lot of time working on that. When you go up to Congress, they throw out at you -- and Judge [David] Sentelle in the Wen Ho Lee and the Plame cases just kept saying, "You mean to tell me these bloggers should be covered, too?"

The answer is some bloggers are journalists, and some aren't. But we have some guidance in federal case law, starting with a case called von Bulow [v. von Bulow], and that was in the [2nd] Circuit. And yes, it was the von Bulow case, but there was a situation in which Claus von Bulow's girlfriend was asked to testify and identify some information she did not want to give up. She said: "I gathered that information to write a book. Those are my confidential sources. I don't have to reveal them."

The court did what we call a function analysis and said when you're trying to decide whether someone should be covered by a privilege, such as a reporter's privilege, you look at what they were doing at the time they had the conversation. At the time they had the conversation with the source, did they represent themselves to be a journalist? Did the source understand them to be doing a story of some sort? And was there intention all along to publish it or broadcast it or disseminate it to the public in some way?

In that case the court, the [2nd] Circuit, said she had no intention of doing that when she collected the information; therefore she's not a journalist, privilege does not apply to her. That same test has been used in a number of circuits across the country, and that's the test that we've been advocating that Congress use in trying to decide whether or not someone is covered by the privilege. Even if the description in any statute we come up with is vague, I think they will go to that von Bulow function test to make that decision. ...

You say that there have been more subpoenas, but what's changed other than Judge Posner's decision?

The administration has changed. 9/11 happened. We have a Justice Department that is more aggressive, I think, in recent years. We also have seen a number of cases that involved special prosecutors.

We'd had a certain degree of success over 30 years in dealing with the Justice Department. They had internal guidelines when they would even go to subpoena a reporter; they would have to get permission from the attorney general's office here in Washington.

So the attorney general himself?

Yes, or the designated person that signs off. But yes, it had to go right to the AG's office. Those guidelines worked. Sometimes there were problems with them, but over the years they did weed out a lot of subpoenas.

Then we came to a situation where we had a couple of high-profile cases that had special prosecutors. The special prosecutors such as Patrick Fitzgerald in the [Valerie] Plame case and the special prosecutor in Rhode Island in the Taricani Plunder Dome case didn't have to use those guidelines and decided they wanted to know who those sources were.

The other situation that we have has involved a dramatic increase in the use of subpoenas in civil cases involving the federal Privacy Act. Here's how that statute plays out: The federal Privacy Act is a law that says you as a citizen or a federal employee, if the federal government has information about you, there are certain types of information that, under the law, they may not disclose to anyone.

There have been a series of high-profile cases out there where people who were in the news, somebody in the government, gave information that probably was in their file and gave it to a reporter. This is what happened in the Wen Ho Lee case [of the Los Alamos scientist accused of spying for China]. This is what is happening in the Steven Hatfill case. He's the guy that the Justice Department said was a "person of interest," I think was the language, in the anthrax case from several years ago. There was even a Privacy Act case brought by [Monica Lewinsky's confidante] Linda Tripp when word was leaked that she had applied for a job in the Defense Department in Europe.

These folks lately seem to have been all federal employees who were very, very angry that somebody in the government released information that was in their personnel files to the media, drawing even more attention to them. They all believe that they were wronged in some way. So they've not sued for libel, because the information that was handed over was truthful information. What they did was they sued under the Privacy Act. If they can demonstrate that the leak came from an executive branch agency, then they're entitled to recover damages for any harm they've suffered. ...

What happens in these cases is these plaintiffs have been able to convince judges that the only way they can succeed, or even proceed with their case, is if they are able to identify the individuals in these executive branch agencies who turned over the information. So they go out and they gather information. They do discovery; they take depositions. In the Wen Ho Lee case, they deposed about 20 people, and everybody said, "It wasn't me; it wasn't me."

The 20 people being reporters?

No, they went to the sources. They said, "We think that the most likely sources are people like Bill Richardson," who was the energy secretary at the time. He's one of the folks who was deposed, and several other people who worked in Energy and Justice. They all said, "Hey, it wasn't me," or the equivalent.

And the judge said: "OK, you've exhausted alternative sources. Reporters, you have to now identify who the sources are." So what you get in those cases -- it's one thing to send a reporter to jail, one reporter to jail. In the Wen Ho Lee case, you had at least six reporters involved. In the Hatfill case, at one point there were 15 news organizations involved.

What they tend to do in civil cases is they don't throw the journalist in jail. They say, well, this is just a civil case, and civil cases are remedied as money. So what they do is they levy large fines. ... Civil cases can last a real long time. One of the reasons the Wen Ho Lee case settled with those news organizations paying $750,000 is because the judge said: "You've exhausted your appeals. I'm still ordering you to testify. I'm going to impose this contempt situation. It's $500 a day," or whatever it was. "And by the way, your employers may not reimburse you." This is coming out of the reporters' pockets themselves.

Those news organizations made a very calculated, difficult decision that was, "We can't tolerate a situation where our employees are going bankrupt and losing their houses because they were doing their jobs." So that, I think, is going to be a very new and popular technique that judges come up with if we don't do something here. ...

I also know from talking to a handful of editors from these major news organizations that seem to be the ones that have been targeted lately that it's the Privacy Act cases that have them most concerned, because there are usually multiple sources or multiple reporters involved. Like I said, these cases can go on indefinitely. That has an enormous impact on the bottom-line budget of your newsroom.

Jim Taricani -- who was he?

Jim Taricani was a TV reporter in Rhode Island who worked for a local television station owned by NBC. He was working on a story, very well-known story in New England involving former Providence Mayor Buddy Cianci. Cianci and some of his assistants were convicted of various types of graft and corruption and are now sitting in a federal prison.

Along the way, there was a grand jury convened, and somebody gave Jim a videotape of a payoff of an undercover operative by Mayor Cianci's assistant. Well, the case was progressing, and at some point the NBC affiliate made the decision to use the tape. The judge was very angry, and after the case was over and these guys had actually been convicted, he went ahead and appointed a special prosecutor. ... The case had many twists and turns, but ultimately, Jim ended up spending four months on house arrest because he refused to identify the confidential source.

Let me take you back to the Wen Ho Lee case. Recently four major media organizations paid a settlement in the case.

Yes. Very, very, very troubling. What really bothers me about this case is I don't know that I would have done anything differently. We know that the law right now, as it stands, is bad. The Supreme Court refused to take the case. We know that the judge was intent on finding out who the confidential sources were. We have a plaintiff -- Mr. Lee -- who absolutely was not going to let this drop. You had a Justice Department that was absolutely convinced that they were right in believing that Mr. Lee had done something wrong and were not sympathizing with him.

Well, he had pled guilty.

He had pled guilty to a felony, and they said: "We're not going to pay damages to this guy. We're just not." ...

Now, here's another interesting situation. One of those reporters, the TV reporter Pierre Thomas, had worked for CNN when he did the story, now works for ABC. CNN said that they were so troubled by this situation that they were not going to participate in the settlement. ABC, his current employer, said, "We can't let bad things happen to this guy." So ABC, which up until that point had not been involved in the case, paid his share of the settlement. ...

Wasn't there, in the Wen Ho Lee case, an implication that the media played along with the government, took the leaks from the government, ran them on the front page, and accused this man of being a heinous traitor?

I think that was only the scenario with one of the reporters. The other reporters were kind of coming to the story late. ...

But you're worried about this case because, one, fines were imposed directly on the journalists, which gives has a chilling effect.

It has a chilling effect. People are going to say: "Well, if I sue under the Privacy Act, who cares if the government pays me? The journalists will pay me just so they don't have to identify their sources." Then again, the journalists are under pressure because who's going to want to talk to them if they think there's even a slight chance that a reporter might identify a confidential source because they're under so much financial pressure like that? ...

You have said that you see this case as even a graver threat than what happened with the jailing of reporters in the Plame case.

These cases, there seems to be much less surgical precision in issuing the subpoenas. In the Hatfill case, for example -- the Hatfill case is wacky for quite a few reasons -- but they just went around and said, "Well, who wrote a story about this?," and then just issued subpoenas all over the place. If your news organization had done a story about Stephen Hatfill, there was a really good chance you were going to get one of these subpoenas. They're issuing far more than a typical prosecutor would issue in a grand jury context.

The potential for money -- let's face it: Reporters work for media companies; media companies have to make money. Media companies have a hard time making money when they're paying lots and lots of damages.

I hate to sound really callous when it comes to reporters here, but it doesn't cost you a lot if a reporter is sitting in jail. But if you're paying unlimited damages indefinitely in a civil case, that's really going to have an effect on your bottom line. That one had really got me quite concerned. I've heard a number of editors for major news organizations say that that's the one that's really got them concerned as well.

But Branzburg, or this situation in the Wen Ho Lee case, does it really have an impact on the practice of reporting?

We've certainly been giving out a lot of advice to reporters on how to behave given this recent round of cases. ... What we're encouraging them to do is have very frank conversations with their sources [before] they make any promise of confidentiality. I know some news organization are crafting these agreements where you as a reporter say, "I will promise you confidentiality, but in exchange, if I'm sued or asked to testify, will you release me from my promise?" Now, that makes me sick to my stomach as well, but I do know of some news organizations that are doing that.

Given what happened with Matt Cooper, who worked for Time magazine and was subpoenaed in the Valerie Plame case, Time gave up his e-mails, because anything you as a reporter write on your computer belongs to the company, under the law, usually not the reporter himself. So Time, against his wishes, turned over his notes and his e-mails. And since that time we've been advising, "Jeez, don't put anything about confidential source information on your computer."

We're afraid that they're going about tapping reporters' phones more often and tracing who they have been talking to. There are more subpoenas out there trying to identify which reporters have been talking to which sources. So we're advocating, look, do it the old-fashioned way. Make an appointment, or just go knock on somebody's door. Do the old Woodward-and-Bernstein thing: Knock on the front door and stand there on the porch and have face-to-face conversations with them. Do not leave an electronic or audio trail.

We're advocating that they use disposable phones, that they never talk to a confidential [source] from their office phone or from their home phone. It's gotten a lot scarier out there if you're a reporter. Now, if you're a reporter working in the national security area, you're really, really conscious of all of these techniques right now. ...

What is the BALCO case all about?

BALCO, that's also an interesting case. ... The San Francisco Chronicle did some groundbreaking stories about steroid and substance abuse in Major League Baseball. There was a lab out there that they called BALCO, the Bay Area Laboratory Co-Operative. They were under investigation, so the feds have a grand jury investigation; these charges come about. A number of prominent baseball players testify in front of this grand jury. Charges are brought, and along the way, these two reporters for the Chronicle get ahold of some grand jury information. ... The court and the Justice Department were very, very angry that this supposedly secret grand jury information was reported outside of what happened in the trials and the other court hearings.

So they launched an investigation into who the leaker was. This case was going on in San Francisco; they went to the U.S. Attorney's Office in Los Angeles to try to identify who the leakers are, and they have subpoenaed the reporters from the San Francisco Chronicle to find out who apparently or may have violated a court order by releasing the grand jury information. ...

... Why should reporters have the right to publish secret grand jury testimony? Doesn't that interfere with the government's ability a, to conduct an impartial investigation, and b, to protect people who have not been charged with wrongdoing?

I think there are a number of people out there who would say yes, and in many cases, when media find out about grand jury investigations, they do sit on information quite a bit. There's a lot of information reporters get that is not reported.

However, in the BALCO case, I think the news organization made a very careful decision about an event and events, about a very important news story. The use of steroids and other substances in major league sports is a very, very big, national problem. Children look up to these folks and get the idea that if they are big and strong, maybe they can make it as a major league ballplayer as well.

I understand it's a worthwhile story.

It's a worthwhile story.

... But still, this is the United States of America. The grand jury is in the Constitution. It's an institution that requires secrecy, and people will not testify freely before a grand jury if they know that the transcript will get leaked.

I suppose that's possible that some of them won't. ... It's illegal for only a handful of people to reveal what happened in front of a grand jury. If you're on the grand jury, you're not supposed to reveal it. If you were one of the lawyers or one of the parties, you're not supposed to reveal it.

But you, as a citizen, if you are called before a grand jury to testify, you may go out the next day and tell anybody in the world what you said and what the case was about. There's no law that prevents that. ...

I think it's important to note that in these grand jury cases we just talked about, Taricani and BALCO, one thing that you worry about with the leak of grand jury testimony is that you're not going to be able to pursue the case, or that someone will not get a fair trial or there's no prejudicial pretrial publicity, and there are all of those interests. That's why the law provides for grand jury secrecy.

I think it's important to point out that in both the Taricani case in Rhode Island and in the BALCO case in San Francisco, these folks have already been convicted or pled guilty or are already serving their jail time. Justice was done. The cases themselves were not jeopardized, which I think is the strongest argument a prosecutor has. If this information gets out, we're not going be able to see justice done here. ...

So does the BALCO case indicate that the government, the Justice Department in particular, is no longer abiding by its old guidelines?

I don't think I could conclude that. They claim that in this case they did follow the guidelines. Even during the Clinton years, with [Attorney General] Janet Reno, we've always had a certain number of subpoenas come out. So I guess I would take them at their word when they said that they used the guidelines and exhausted them. ...

Every once in a while, I get a case ... where a reporter will call and say, "I got this subpoena from the federal courts." I say, "Call them back, and ask them for proof that they followed the guidelines." The reporter or the news editor or whatever will call back, and the subpoena disappears, because they don't realize that that's what they have to do before they can go after a reporter. So there are a lot more federal subpoenas out there that we tend to get pulled when we say, "Ask them if they followed their own procedures." When you do that, oftentimes they'll back off. ...

So are you seeing more subpoenas now, or does it look like the government is cracking down on the press in a way that it wasn't, let's say, two, three years ago or more?

Yes, I think I would have to say that. I'm finding out about more reporters who have had their telephone records subpoenaed. ... Certainly we've seen these special prosecutors being more aggressive with the media subpoenas. ... Patrick Fitzgerald, I think, did great damage with the Plame situation, but he wasn't subject to the guidelines. When you couple that with the Privacy Act cases, there's no question that there are more of them out there right now. ...

Tell me how Patrick Fitzgerald did "great damage" to journalism.

I hate that case. I think the biggest problem with that case is it was referred to a special prosecutor because there was a belief that a particular statute may have been violated. And that was the Intelligence Identities Protection Act, the theory being that by revealing the name of Valerie Plame Wilson as an employee of the CIA, she fell under this particular statute, and the release of that name was illegal.

I think fairly shortly after that investigation was launched, perhaps within days or weeks, Fitzgerald had enough information to conclude that that statute was not violated. At that point, I think he should have dropped it.

It became an obstruction-of-justice investigation; it became a perjury investigation. But I think there was enough information available soon [enough] to know that the law that was supposed to be being investigated was not broken. As a result, for the most part, you had reporters who were trying to protect their confidential sources.

And last summer was an ugly summer, because politics got interjected with First Amendment law, ethical obligations. Then ultimately what we saw was great turmoil at The New York Times and journalists trying to cannibalize each other because they didn't like [reporter] Judy Miller. It was a very ugly time. I don't know that that particular case is as distressing to me as far as the law precedent … but it certainly was ugly.

... In that case, the major news organizations all decided on their own strategy.

Yeah, they did. ... Ultimately, the companies were all over the map on what was the right thing to do. Last summer, probably the number one question I was asked by other reporters was, "Is it OK to identify a confidential source if you go back to the source and the source says it's OK?," because there are some reporters who will say, "Yeah, if you're released from that obligation, it's OK." There are other people -- and at the beginning, Judy Miller was one of them -- who said: "Not going to cooperate, no how. There is no way cooperation is not coerced."

That's another thing that we can talk about perhaps a little bit, about these Justice Department waivers that keep being dropped, where you get everybody in a department who's a potential source to sign a waiver saying, "If a reporter ever promised me confidentiality, I hereby revoke that; I hereby absolve them of that obligation."

And that's coerced, because if you don't sign it, you're out the door.

Yeah, you have a choice: You sign it, [or] you're without a job. And Judy, I know, felt very, very strongly that there was really no way someone could do that uncoerced. Of course ultimately that was inconsistent with the decision she ultimately made. Matt, on the other hand --

Matt Cooper.

Matt Cooper. Matt was called twice. And I think he learned his lesson in a very difficult way. The first time he was called to testify, he refused