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- Floyd Abrams
First Amendment attorney - Carl Bernstein
Reporter - Ben Bradlee
Former editor, The Washington Post - Earl Caldwell
Reporter - Len Downie
Editor, The Washington Post - Randall Eliason
Former prosecutor - Seymour Hersh
Writer, The New Yorker - John Hinderaker
Blogger, Power Line - Jeff Jarvis
Blogger, BuzzMachine - Bill Keller
Editor, The New York Times - Nicholas Kristof
Columnist, The New York Times - Nicholas Lemann
Dean, Columbia University School of Journalism - Eric Lichtblau
Reporter, The New York Times - Norm Pearlstine
Former editor in chief, Time Inc. - Walter Pincus
Reporter, The Washington Post - Dana Priest
Reporter, The Washington Post - James Risen
Reporter, The New York Times - Tom Rosenstiel
Director, Project for Excellence in Journalism - Brian Ross
Chief investigative correspondent, ABC News - Bob Woodward
Reporter, The Washington Post
... The other bad fact was that whoever was being protected apparently by Ms. Miller and Mr. Cooper wasn't really a whistleblower, was apparently someone out to damage the reputation of a dissenter.
... It's true that in a situation in which what is involved is not a whistleblower exposing misconduct within the government, say, but someone within the government, particularly in a situation in which it could be said that the person's using his position to attack someone else, in that circumstance it made it a still more difficult case. No question of that.
Now, my own view is that the law can't and shouldn't distinguish, and I would say journalists can't and shouldn't distinguish between good sources and bad, virtuous sources and unvirtuous ones. If a journalist grants confidentiality, I think the journalist has to keep her word.
The hard questions, I think, are much more in the area of when should you grant confidentiality, not whether you should keep your word once you do it. One of the hardest problems, which I think people don't recognize, is that journalists frequently don't know what the answers will be to the questions they ask until they ask them. So if a source says, in substance, "I won't tell you that," or, "I won't talk to you unless it's on terms of confidentiality," and the journalist says, "OK," then the journalist is about to hear for the first time the information of the source. And that information can be -- what?
Socially advantageous to the public, or maybe even socially harmful?
There are dangers in granting confidential treatment, but it seems to me very important for the credibility of all journalists and for the general free flow of information to come to the public for journalists who, having once promised confidentiality, keep their word about it. ...
I know of very little important reporting of the last 30 to 40 years that has been done without use of confidential sources, particularly in the national security area. ... What we know about the last five, six, seven presidencies, we know through the use of confidential sources. If we had relied on the information from this president, from this secretary of state, from this secretary of defense, from this vice president, we would know almost nothing of the truth of [the Iraq war]. ...
But with the use of confidential sources, certain things are incumbent on the reporter: to represent a kind of responsibility and refuse to be whipped around by a source, to be led astray by a source. There's a responsibility, if possible, to identify the particular orientation of a source. For instance, if it's a story involving fund raising in the Republican National Committee, and the source is a Republican fund-raiser, it would be very significant to identify that person as a Republican fund-raiser. If it were a Democrat off on the sidelines, it would seem to me you would have to say that the source is a Democrat and then explain how he's come into information and why it's credible. So it's a tricky question how you present it.
[Tell me about the role of confidential sources in Washington reporting.]
Well, a confidential source is somebody who will talk to you. ... You've got to get to the people who know; that's the culture of this town. I mean, half of the people are throwing it at you and want you to know everything that puts them in a good light, and the other half don't want you to know everything about a story because you might reach a different conclusion, and they might not look quite as good as they think they do. ...
... Do you think that confidential sources are overused? ... When I call an official in Washington, very often they'll say, "Now, this is off the record," and they start talking before I can say stop. It's like in Washington, D.C., everything is off the record unless the source says it's on the record.
Well, that makes life easier for them. But when they say that to you, you say, "Well, wait a minute; I don't want to take it if it's off the record." It's a lot easier for them to say that; then they don't have to worry about it. ...
When you're talking to a reporter at The Washington Post, and he says, "Should I grant this person confidentiality or not?," what's the guideline? What's the Bradlee rule?
If you're going to have a meeting over it, it's too late. You should try to get it on the record. Try for maximum identification. Keep it up, keep it up. After they say, "Well, I can't do it; I have to take it off the record," [you say,] "Well, why do you have to take it off the record?" And then maybe you say, "OK, I agree not to talk about this thing." ...
So the issue gets framed, though, around Watergate because the confidential source is so key to the story coming out.
Well, you're talking about Deep Throat? Well, he was key. But he was really key on keeping [Bob] Woodward and [Carl] Bernstein on track. He would call and would tell Woodward and Bernstein: "Don't bother with that. Just don't bother. That's going nowhere. You'll waste your time if you spend a lot of time on that. Take a look at the money. Watch the money. That's interesting." Often Deep Throat wasn't saying that if you go down this street 150 feet and turn right there's a little something under a rock; there's some information. That isn't the kind of detail that he was giving them.
So he was a guide?
He was a hell of a guide.
And so when you see this battle in 1972, '73, that's when it's really hot, right? That's also when Branzburg [v. Hayes], the decision comes down that you don't have, under federal law at least, a right to withhold your sources. Was that a threat or in some way a cautionary thing?
Sure, it was a cautionary thing, but it never was accepted by the press that we had to reveal our sources. The first thing that we started instructing our reporters [to do was] to go for maximum identification. Don't say there's "someone at the Pentagon;" that just baits everybody. There are 10,000 people in the Pentagon: male, female, Army, Navy, young, old, veteran. There are hundreds of ways of narrowing it down, even though you don't get the actual identification. ... You don't want to identify him so that he'll get in trouble. I don't think it's as complicated as society sometimes wants to make it.
There are people who are always up in arms against the confidential sources, but the people who are the confidential sources, they're not yelling. ... You don't hear Karl Rove talking about the abuse of confidential sources, because he's one of them. All those government people are. Presidents are. Presidents tell reporters things they wouldn't say at a press conference. ... It's the people who are in the dark. The people who don't know the source complain. ...
But doesn't this sort of laissez-faire attitude about confidential sources open you up to manipulation?
Of course, of course. People talk to reporters only because they want to, and the only reason they want to is they have a motive of some kind. It's up to a good reporter to understand what that motive is. Once you understand their motive, you can put it into perspective and give it the importance it's due. That's an essential part of journalism. But I don't think it's being greatly abused. The press corps is sophisticated. [They don't] just go in and start quoting people willy-nilly without putting it in a perspective. I don't think there are very many of them. ...
You can tell who the sources are. Really you can. If you suddenly see a story that is really dumping on some department or some person at a department, it's fairly well known in his little community who the people [are] who don't like him and want to get him. So you poke around, and you could say, "Oh, I wonder if it was Joe," or whatever, like that.
So when [columnist] Robert Novak published Valerie Plame's name and identified her as being connected to the CIA, you could tell where that was coming from?
No, not at first glance you can't. But the Novak case is fascinating. He says he has three sources and revealed two of them as of yesterday. And the fact as I know it is that the first two he identified, nobody cares about. It's the third person who was his real source, and most people who have spent any time in it know who that is. [But] it doesn't make much difference to the story.
So when you see this kabuki dance between the government and the press over confidential sources after all these years, what do you think?
The guy that's complaining is the guy that got burned. And that doesn't mean it's good or bad. It gets complicated if the person who is talking to you is committing a crime by talking to you; in other words, is giving you really classified information that you've got no business knowing.
You mean like national security eavesdropping?
Yeah, national security is the bugaboo. As soon as you say national security, everybody goes, "Oh, my God, he's a traitor."
I remember being a young reporter, and I was still writing about foreign aid. It wasn't the most complicated story in the world, but there was some information that I didn't have, and I went up to a congressman called Otto Passman from Louisiana. He had the document, and by God, if halfway through this interview he didn't pull the document out, take his scissors out, cut the word[s] "Classified: Top Secret" right out of it, and give it to me. And I said, "Thank you very much," and got out of there. ... And he did it for a purpose. He was against foreign aid, ... so he wanted it out, and he put it out. ...
When the Pentagon Papers showed up, The New York Times has already published and had been enjoined, right? Why did you decide to publish it? Weren't you violating national security?
The prosecutor eventually said there was not a single matter involving national security in the Pentagon Papers. It took him 16 years to say it, but he said it.
And why did we publish it? The story that we ran did not violate national security. When we got possession of the Pentagon Papers, we never ran anything that was involved national security, and Richard Helms, former head of the CIA, testified to that. There were two CIA agents in Saigon identified in the Pentagon Papers by name, and when we noticed that, everybody said, "Well, God, we're not going to name CIA agents." So we said, "No," and took that out. I went around to Helms, looking for brownie points, and I told him that we'd kept it out. He said, "That's very nice of you, but we took those guys out of Saigon the day the investigation started." ...
We've interviewed a number of people who say, "Who are you, [New York Times executive editor] Bill Keller or [Washington Post executive editor] Len Downie, to decide what should be secret and what should not be secret, what the public should know about and not know when it's a matter of national security?"
Well, just because some guy who sold cars in Kansas City last year comes to town as an assistant secretary of something and tells me that it's top secret and the world can't afford to know it, that does not prove it to me. It really doesn't.
I can only speak for myself and my generation, but we have certain credentials in this area. I worked for the government for two and a half years. I was the press attaché in Paris. I had a very high clearance. I could read any damn cable I wanted to. And I served four years in the United States Navy on a destroyer. I know what real national security is. But just because this guy came to town and says, "Well, we can't tell you that; it's national security," I say, "Excuse me?"
I remember the first words Richard Nixon said about the Watergate case was that he was going to be unable to discuss it because it involved matters of national security. That was just baloney.
Katharine Graham took the [Watergate] documents under her possession when a subpoena was served on The Washington Post. If she hadn't stood up through that period, would Watergate have happened?
I don't know the answer to that. We called that the grandmother defense, because if we suddenly gave all our documents to a woman who was in her 60s then, instead of [to] Bernstein and Woodward -- Katharine Graham is a whole lot better possessor and a lot more important witness. We never did have to take it. The man who's trying to get those documents was [Spiro] Agnew, the vice president, and that whole negotiation, about whether Agnew could get Katharine Graham to cough up the documents, became moot when he was indicted and forced to resign.
Did the [special prosecutor Patrick] Fitzgerald investigation change the rules here in Washington or expose, let's say, the degree to which reporters both were using confidentiality but in turn were willing to give it up?
I don't think it's changed the rules. It made it harder, temporarily harder, in that case. ... I think it is normal for the government to try to keep out of the press what they want out of the press, and that's not changed.
Have you ever seen a time when a half a dozen reporters have testified before a federal grand jury before: Time magazine, NBC News, The Washington Post, eventually The New York Times?
I think probably it's as advanced as I've ever seen it, but it's not revolutionary. It's not the first time any of this stuff has happened. ...
It happens; it just happened quietly.
And I think the first step, at the Post anyway, is to try to negotiate with them to keep me out of the grand jury. We don't want to go to the grand jury. Ask us questions, we may tell you.
We interviewed [former Time magazine editor] Norman Pearlstine, and he says that the promise of confidentiality is not absolute. For example, a corporation cannot violate the law, and therefore he gave up [reporter] Matt Cooper's files. Would you do that?
I don't know. I don't know enough about the case in itself. But gosh, we don't violate laws. We really don't violate laws. I can understand what he's saying. You can fight on the other hand like hell to say to them, "It's a dumb move; let me tell you why it's a dumb move." In the long run, it won't help society. And maybe they'll buy that, and maybe they won't. They certainly can get time. I mean, they're not going to throw you in jail the first day. ...
What did you think when [New York Times reporter] Judy Miller went to jail?
Well, Judy Miller's a special case. She really is. She didn't have to go to jail. I think there was some sense, at least in the beginning, that she was carrying a cause, and she didn't mind doing a little time for it.
For her own reasons?
Yeah. She became a heroine for that. I'm not the first person who's brought that up, I hope, that she had ulterior motives.
You mean because she was trying of the recoup her reputation about the weapons-of-mass-destruction coverage?
A little bit.
There are people who say that it was the disunity of the press -- each news organization taking it own tack, in that case -- that really undermined the press position versus the government.
There's a lot to that. I think the disunity of the press is a great force for democracy. If we start making common cause on every damn little argument that a prosecutor gets into with a reporter, we're going to look silly, because it's going to look like it's the press against the world, and it isn't.
When you see people in Congress calling for the prosecution of The New York Times for espionage, what do you think?
Oh, that's just ridiculous.
What about the leak investigation related to [Washington Post reporter] Dana Priest [and her reporting on secret detention centers in Eastern Europe]?
There's always a leak investigation. You really must understand that. There is always somebody who doesn't like it that something got out, and they start an investigation. Sometimes they're very important. Sometimes the grand jury's involved. Sometimes it's just the guy's boss [who] is involved. But that's always going on. Half the people in this town want to get it in the paper, and half of them want to keep it out.
It almost sounds from the way you're talking about this that we're getting spun up because maybe this isn't that serious; the government is going to back down.
It's not going to be resolved in any way that's going to run them out of business or us out of business. As I say periodically, there are these issues that come up when somebody's really been burned, and they make a fuss about it. So Judy Miller goes to jail for ... 85 days. ...
But today Dana Priest at The Washington Post, and Jim Risen, Eric Lichtblau at The New York Times are being investigated. There's a general leak investigation going on in this case. National security questions are raised. And with the precedent that's established in the Miller case about Branzburg, if there's a grand jury, you're going to face jail.
Well, I don't think that they are going to go to jail, any of those people. I just don't think they are. And when the forces that are trying to nail them take time to think about it, I don't think they want it either, ... because the sympathy is going to be with the press.
But ... how often have you seen that happen? How often do you see the House of Representatives passing a resolution condemning a news organization, a certain kind of reporting?
Not often. But how often do you see a president of the United States going after a paper because they're going to force him out? No, no, you don't see any of that often.
Nixon did. They were all trying to get the Post in one way or another. Nixon tried to revoke the Post's licenses for the television stations.
Yeah, but he didn't do it. ... He got some friends of his to file competing applications for it, but they were not successful.
Today the president of the United States calls The New York Times disgraceful.
Well, you know, he's president; I'm not. I wouldn't have done that, and I don't think that did him any good.
[Then you don't see this as an escalation of the government's attack on the press that's going on right now?]
I don't think it is some big wave that is peaking. I think that the press is a very convenient whipping boy for politicians, and it has been since they invented it. I don't know any reporters or editors who are really feeling threatened. We've got to watch it. Then let's see who's a traitor, who's doing their country harm. I don't think it's the reporters.
Have you ever been subpoenaed and had to testify before a grand jury ... in a criminal case as a reporter or an editor? I mean, it's rare.
Yeah. And let's keep it rare.
Yeah, but you just went through a situation here in Washington where reporters were going in and saying, "Oh, I don't really know anything; I'll testify," or, "I'll make a deal; I'll testify," or "I won't make a deal; I'll go to jail," but then, "I'll testify." Novak himself testified.
Well, I don't think he danced all the way to the grand jury room. I think he didn't want to do it, but his lawyers told him that he had to, and our lawyers told us that we had to. ...
Look, our lawyers are very tough about this, and they're also very experienced in it. I daresay they're more experienced in it than the person who was trying to get them to testify. If they tell us to testify, we testify. That's the end of it. We are citizens. We'd much rather not, but if we have to, we have to. ...
So what does that [mean for] people who trust you out there, who want to talk to you, that they'll be protected until such time as you have to testify?
I don't really think it has made a difference. The next source we have in a certain case probably won't even ever have heard of this case.
If Woodward and Bernstein had been subpoenaed to a federal grand jury because of what they were reporting and because they obviously had a source that had law enforcement-sensitive, if not classified, information, and they were told by the attorneys to reveal their sources because Branzburg says you've got to, would you have had all of [the] Deep Throat stories? Would you have had Watergate?
Well, it wasn't for lack of people who wanted to get Woodward and Bernstein and the Post. [The government] just decided they weren't going to do it, and the reason they did is because they weren't going to win. And to go try that and miss it would have been a real blot on their ascots. ...
What are the stakes for reporters when they can't promise confidentiality to a source?
... Most reporters don't want to offer people confidentiality, because the minute you say any of that kind of stuff, you're hurting yourself. But sometimes you have to do it, especially when you're trying to get in; especially when you're trying to get people to know you, to trust you, to let you in, and especially when it's a very sensitive subject. …
With myself and the Black Panthers, [I didn't write] some Panthers were in a little meeting one night and said, "We've got to overthrow the government." The leading Panther who wasn't in prison at that time, David Hilliard, said these things. But I quoted David Hilliard as saying them. That's why they mean something. I do believe that the anonymous sources really get us into a lot of trouble. People say, "Well, you have to have anonymous sources," but to me, a lot of times, if you can't tell your sources, then it takes away from the information. ...
Is there a procedure at The Washington Post for how you handle anonymous sources?
Yes, there is. First of all, we really do urge our reporters to be on the record. ... If that's not possible, when stories are turned into editors [and] there are quotes or there is information cited to unnamed sources of various kinds, the editors ask questions about that: Could this have been on the record? Could it be on the record?
We also ask reporters ... to object to ground rules when they think they're the wrong ground rules; at briefings, for instance, where we think people ought to be on the record. We don't just do that; a number of news organizations in Washington do that. They've often caused what were not going to be on-the-record briefings to be on the record.
But once unnamed sources have been used in a story that's pending for publication, the reporter has to explain to the editor why that's the case. We have to try to craft the best explanation to readers possible in the story as to why the person's not on the record. And at least one editor needs to know the identity of every source. ...
When you make these deals with these senior government officials, do you tell them, if I get subpoenaed to reveal your name, will you release me?
... It's part of the ground-rule discussion: "OK, you're going to remain a confidential source in the paper, but if the Post gets subpoenaed, would you then release me from the confidentiality pledge or not? I just need to know that."
Sometimes sources will say, "Yes, under those circumstances I would release you from your confidentiality pledge; you can identify me." On other situations they'll say, "No, I want to remain anonymous forever." ...
... I've heard discussions among my colleagues, especially in Washington, about not allowing anybody to go off the record or on background. ...
We are being more vigorous. This happens periodically when we think we've fallen into bad habits. We get more vigorous about trying to force as many people as possible on the record. But it's also impossible to have everybody on the record, and it particularly would be impossible to do a lot of accountability reporting, because your best sources are people who literally are jeopardizing their jobs, their livelihoods and sometimes their lives by talking to us, and they then can only do that if they're anonymous. ...
But this administration then orders some of its officials to talk to reporters, to give them selective leaks, to support its position. So why protect them?
Because that's the only way we're going to get that information and then check it out. Sometimes we will not agree to the ground rules; in fact, there are many cases [where] we won't agree to the ground rules. We insist that somebody be on the record, or we insist that a briefing be on the record. ...
This process of background reporting, ... isn't it possible that, in fact, not only is your reporter being manipulated by people, but also your reporter is going to protect the people who are speaking to them on background, protect them also from scrutiny?
Yes. ... They manipulate the media all the time, government officials do. ... What we have to do is sift through people's motives and sift through the accuracy of what they're telling us to determine what stories we ought to publish. ...
Reporters develop friendships, liaisons with cooperative, knowledgeable sources who they want to have keep talking to them on background. They aren't likely to want to turn around and do a story about some illegal or other activity about that source.
The best reporters will do that. In fact, that's one of the ways I judge how good some of our reporters are, how willing they are to do that. ... If we do have a situation where we know something ought to be found out about a source, and the reporter who has a regular relationship with that source isn't willing to do it, then we ask another reporter to do it. And we've done that. ...
If the source has committed murder, you still maintain confidentiality? Are there any limits?
I never have come across a case where a murderer has given us a confidential source for the interview. When there's clear and present danger to the public, we act like normal citizens. If a murderer on the loose calls up The Washington Post -- and this has happened -- the first thing that we say is, "If you want to continue this conversation, I must tell you we're going to inform the police that you just called us, and I wish you'd give yourself up." Then if he wants to continue talking to us, we'll continue talking to him. And then we'll call the police. ...
And all of these major stories that have come out over the years -- Watergate, Iran-Contra, Abu Ghraib, secret CIA prisons -- all took place without a reporter's privilege law. I think history teaches us -- and this is another thing that Branzburg said -- leaking happens, and it happens for a lot of reasons. It always has happened, and I think there's little reason to believe that the presence or absence of a privilege law is the thing that decides whether or not a source is going to come forward and talk to a reporter.
A reporter can promise a great deal of confidentiality just by saying: "I'm not going to publish your name, and I'll never give it up voluntarily. ... I would only reveal it after I finish all my appeals, and fight it as long and as far as I can, if a court orders me to testify. Only then would I give up your name." That's a great deal of confidentiality, because that very rarely happens. There are so many other ways for a source to be revealed, through internal investigations or other kinds of investigations. ...
A source always has the option, if they're really, really concerned, to give the information anonymously, to provide information to a reporter without identifying themselves -- slip the documents over the transom, send them a plain brown envelope or make an anonymous phone call; don't even tell the reporter who you are. ...
When you guarantee official confidentiality, is that the same kind of confidentiality that you would give to anyone else in order to have that meeting?
It's absolutely the same, absolutely. You're making a commitment to protect them. The problem you have is there's incredible degrees of integrity with which this practice is practiced. In other words, it's very troubling, because an anonymous official -- sometimes it's a way of disguising a weak source. I used to see that at The New York Times and other places I worked, too, the Associated Press. You disguise a not-very-good source by not identifying them. That's another chronic problem with our business.
But I'm just trying to get down the principle. The difficulty of the whole Valerie Plame story is that it is confidentiality for powerful officials who are trying to spin the press --
Oh, my, I am shocked. I am just shocked that that happened.
-- and a kind of coziness between various reporters and their sources, right? So in that situation, is the guarantee of confidentiality, in your mind, the same as, let's say, with a whistleblower or someone speaking who is not a powerful official, who's just trying to get to the truth of what they see?
It doesn't matter what's in my mind. In my mind, it shouldn't be the same. In my mind, if you have somebody that doesn't tell you the truth, and you're sure he's not telling the truth, you really don't have an obligation anymore.
But that's in my mind. I don't act on it. I assume it's the same. I don't out people. I just won't deal with certain people anymore. ... The fact of the matter is people are always going to be manipulated by sources. Sources are always going to try and manipulate us, particularly the higher up in the government. They're trying to spin you. That's the way it is.
It's sort of a crude, crazy system that sort of works. But ultimately I think something approximating truth gets out, because you can't stop what's facts on the ground. So I just don't see it as much of an issue. I think it's part of the business.
And this, too, will pass.
It always does. We'll survive. And will we learn a thing from the history? We don't learn any more in the press from history than presidents do from history, which is basically very little. We go right ahead doing the same thing.
There are reporters tomorrow that will be cutting a deal with somebody in the White House and being misled and believing that they're not being misled, and believing even when they're shown not to have been misled that they weren't misled. Or if they were misled, it wasn't their fault. It's going to happen all the time. That's just the way it is. So what? It's a huge business with thousands and thousands of people.
... One of the big problems with these illegal leaks is that the person reading the newspaper never gets the whole story. It's inherently selective. The leaker only leaks the part of the story that he wants to get out in pursuance of his agenda, and then the reporter writes that story. So it's inherently a slanted story.
If you want to go back and say, "Well, wait a minute; I want to know more about this," ... where do you go? It's an anonymous leak. This whole practice of basing news stories on anonymous leaks has gotten way out of hand. I mean, The Washington Post, The New York Times -- they would have to close down their front page if they were not allowed to print stories based on anonymous leaks. ...
Yeah. And I abhor those secrets as a rule. When people try to talk to me off the record, I hate that. I often leave events that are held off the record, because I think it's usually silly. We rely far too much in our business on anonymous sources. We don't reveal enough to people because we got too addicted to that. To allow anonymity is a precious thing.
Now, of course, you're going to say there's anonymity aplenty on the Internet, and that anonymity, by the way, is a very important tool for people to be able to say what they want to say unhindered. But I always tell them in my blog that if you don't have the guts to stand up behind what you say with your name, I am going to respect what you say less; I'm going to trust it less. That's my decision; that's my gauge of trust. So in any case in journalism, when we use anonymous sources, we are holding something back from the public that allows them to judge the veracity of what we're reporting to them. ...
So how do you rate Mr. [Bob] Woodward's reporting a series of books, for instance, on the Bush administration replete with [anonymous sources]?
It's part of what we know. I'm just saying it's simply better if we know the source. Am I saying that I don't trust it at all if it's an anonymous source? No, but I'm saying that if I understand who the source is, I'm going to be able to judge that information better. ... It may seem a little glib, but I would also argue that today Deep Throat could have had a blog, could have been anonymous on the Internet, could have revealed something to the world anonymously. ...
But if Deep Throat had done that, and it hadn't gone through The Washington Post, ... it's not clear anybody would have done it at that point, because [there] was no way to evaluate who the source was. ...
True, and to this day, until only a few years ago, we couldn't judge that source, so we judged Woodward, which is fine. We chose to, and he was right, and he went and did a lot of work to confirm what that source said. The story did not come whole from the source. That's the whole part of the story, is that they went out and reported. ...
I understand New York Times policy now is that a reporter has to identify his source to an editor, ... and the editors would have to participate then in what the generic description was of the source?
Well, often it doesn't require a lot of imagination to do that. Some are "senior White House official" -- that kind of term of art occurs all the time. But in complicated cases, editors do get involved in exactly how you're going to characterize this person. My mantra in these cases is always, "We want to tell the reader as much as we can about why we think this person knew the information and whether they had an ax to grind." ...
But do you believe that all sources -- whether they are whistleblowers or government officials who want to get their point across, speaking off the record or expecting anonymity -- should be defended?
No, absolutely not. ... Obviously reporters make different decisions, but there are occasions when I would feel comfortable breaking a pledge of confidentiality to a source: if, for example, it was clear that somebody had lied to you in an attempt to use the newspaper for some agenda. ... You don't get a free pass. Talking to a reporter anonymously doesn't give you a free pipeline into the pages of the newspaper. ...
Are confidential sources overused?
I think we use confidential sources too much in the news media. It's easy: People will often tell you things if they can hide behind that shield of anonymity, and we probably are too ready to accept that shield. And it's just convenient; you just run it in the paper. Now, there are some occasions when I think it's understandable why you would grant somebody anonymity -- the classic cases of [a] whistleblower. But when you get a government official -- an assistant secretary of state or a national security adviser hiding behind that shield -- I don't really see what public policy interest is served, why that person should be granted that anonymity. They want to get their view across, and we in the press could be much firmer about saying, "Look, if you want to convey your opinion, then come out and use your name and title."
I assume you believe in reporters having confidential sources. Now, the first kind of sources we're talking about --
What I tell students here, when they ask, "Is it always preferable to get things on the record?" is, you should try to get things on the record. I always try as a journalist to get things on the record. But if pressed, I wouldn't say to people, "I will only speak on the record, and I will never go on background or off the record," because you do get things that are helpful to you in prying out some other information from some other person. So I believe in it, but not as the first resort, I suppose.
What's the public-interest in stories that resulted from confidential sources, the real whistleblower type?
Essentially, if you work in a news organization, you get tips all the time about things that need to be looked into. Most of them don't amount to anything, but some of them do amount to something. And many, many, many really good and important and world-changing stories begin with an anonymous person leaking an interview or leaking a document. ...
A really good example is the Abu Ghraib story. This story rocked the world. It was bad for the American war effort in Iraq, but I think very few people would argue that it isn't net good for the country and the world and democracy and discourse to have this seen in the light of day. And all this material in the first instance came from confidential sources. If you had a world with no confidential sources, I don't think we'd know about Abu Ghraib. Not everything comes out on its own.
So [the use of] confidential sources is wedded to the public-interest function of the press, especially over the last 30 years or so?
The First Amendment was not written with confidential source relationships in mind. The First Amendment was written at a time when there really wasn't much reportorial journalism, and what I think the framers of the Constitution had in mind in the First Amendment was protecting essentially freedom of political speech when it was printed and disseminated.
Nonetheless, I think there's a very strong public-interest argument for confidential source relationships and how they enhance democracy. That's why most of the states have legislation on the books protecting those relationships. Now, the federal government doesn't have legislation protecting it, and that's where things are getting interesting right now.
Well, [New York Times reporter] Judy Miller went to jail because of it, the lack of a federal shield law.
Judy Miller went to jail, right.
What do you think of Judy Miller and what happened? She went to jail. Did that help journalism? Did that hinder journalism?
I admire her for sticking by her guns and essentially saying, "I have a confidential source relationship, and I'm going to protect it, and I'm going to go to jail to protect it." She didn't claim that it was legally protected; she essentially said, "I have made a bargain with my source," who turned out to be [former Chief of Staff to Vice President Cheney] Scooter Libby, "and I'm standing by my word even though I know there isn't any legal protection currently, and I'm going to go to jail over it."
She had a coherent argument for why she then left jail and testified, which was that Libby had released her from her bond that she had made with him, a sort of private contract without legal standing. So therefore she left jail. I think the way the case nets out, though, is that prosecutors would take from it the signal that if you just keep pushing and pushing and pushing on the press, they're going to cave on this going-to-jail stuff and eventually testify. So I'm not sure that --
But has that been unfair, because [journalist and author] Bob Woodward didn't resist the subpoena when it turned out he was one of the first recipients of this information. [Columnist] Robert Novak didn't resist. [NBC's] Tim Russert walked right in and said, "Of course I'll testify." And Cooper at first testified and only then balked, and then later testified. Has it been unfair to rap Judy Miller because she was willing to take this to jail and make a point of it?
She showed a lot of courage in being willing to go to jail to protect her source, and that's admirable. I just think the net of that case doesn't play well for the press in its ongoing maneuvering with prosecutors, because prosecutors took from that case the lesson, "If you keep pushing you'll eventually get the person to testify." So it's important. Her behavior and The New York Times' editorial stance are both important.
If they thought all along, "If only Scooter Libby would have a conversation where he'd release us from our obligation, then we wouldn't need to go to jail, and we'd be happy to testify," it would have been better from a PR standpoint for them to have that conversation a few months earlier and not walk up the hill and then walk down the hill. But nonetheless, I do admire her for being willing to go to jail to protect the promise she made to her source.
But the reason prosecutors may take encouragement to subpoena reporters is that the journalism community, particularly the Washington journalism community that sits in that same sort of hothouse every day, basically caved? [Special prosecutor] Pat Fitzgerald gets people to sign waivers, and everybody walks in and starts talking.
Right. Look, here's the situation. Almost all states have a shield law that spells out when reporters are protected in their source relationship and don't have to testify. There is no federal shield law. This applies notably in the area of national security; national security is not covered by shield laws.
If you had to say to somebody, "What's the net result of the Plame case with respect to protecting the reporter-source relationship?" and you have to state it in one or two sentences, you'd say: "The net result is, absent a federal shield law, if prosecutors push hard, news organizations will eventually cooperate. Some will cooperate right away, some will cooperate more slowly, but the prosecutor got every news organization to testify." That's the one-sentence version of this.
But even if there's a federal shield law and you have an issue like the identity of a CIA agent, or who told you about an NSA [National Security Agency] program, no shield law is going to protect --
Well, so that's what's good about legislation. It's healthy to settle public policy matters through having laws passed because it makes all this clear, what's protected and what's not protected. A hypothetical federal shield law would clearly have to address situations like this, and it would have to say either, "Even in all cases it's protected, end of story," in which case the prosecution wouldn't go after the press, or they would say, "There are the following three or four exceptions where there is no shield," and then prosecutors would go after the press, [and] they'd have a strong case.
In other words, it's hard for the press to argue, "There's something we do that is in the public interest, and even though the public's elected representatives haven't detected that it's in the public interest, we know it is, so therefore we get a legal protection." It forces the press to go into Congress and argue the case. It's democracy at work.
One reason that a federal shield law wasn't passed -- as I understand it, Congress was poised to pass it in '74 or '75 -- one of the issues was, "What's a journalist?"
All these things you can settle, though. We journalists tend to think everything involving us is uniquely complicated and nobody can possibly work it out and understand it except for us. I've seen various iterations of this definition. But you can settle this by having a bunch of people in a room writing various versions of the legislation and arguing about it. They're all out there now. I don't think it's a crippling problem.
But meanwhile, if a federal court just ruled on another Judy Miller case involving phone records. ... And the BALCO [Bay Area Laboratory Co-Operative baseball steroids] case is pending and those reporters [Mark Fainaru-Wada and Lance Williams from the San Francisco Chronicle] are facing jail, and a young blogger [Josh Wolf] is in prison. It sounds like there's a concerted effort, particularly on the [part of the] federal government, to squeeze reporters and to squeeze this privilege.
I wouldn't say a concerted [effort]. I would stop there. I would say the atmospherics have changed on this issue. The atmospherics are that I think prosecutors, having to meet and talk about it, would just by reading the papers have the feeling that if the information they want entails subpoenaing a reporter and asking about his source relationship, the climate is much more friendly now to that working than it used to be.
By the way, these prosecutors, they're not getting up in the morning saying, "I'm doing this in order to destroy freedom of the press in America." They're saying, "Why does the reporter get a right to stand in the way between me and catching the bad guy, which is my job?" There are two competing visions of the good here, which is why you need legislation.
You say the paper's very responsible. Walk us through the process here: Do you have to identify your sources to someone at the newspaper?
The paper has now a set policy whereby at least one editor is aware of who the sources are. All newspapers in the last few years have gotten more stringent about that as a result of problems that came up elsewhere. ...
But how does that work if you're talking to somebody in the Justice Department or in the CIA, and they said to you, "Well, I'll talk to you, but this is all off the record," or, "This is all on background," and then they don't say anything that's that worthwhile? ...
No, it's generally just what appears in a story that's attributed to an unnamed source that would be run by an editor. If you just have a conversation that doesn't make it into the paper, no. You might offer that up just in a conversation about stories with an editor, but it would not be the same hard and fast rule. ...
I'm thinking of my own experience. There are people I know in Washington and elsewhere, where over the years I've just gotten so familiar talking with them that we assume it's all off the record, because there's no other way for us to, in a sense, legally talk freely. You have relationships like that, I assume?
Yeah, I think that's fairly common in Washington, that if this is someone you have an ongoing relationship with, you understand the ground rules.
Is your relationship to a source sort of the way it was portrayed in All the President's Men? -- somebody writes a little note on your newspaper; you see that, and then you should be in the parking garage? How does it work?
We're not usually that clever. I wish we were, but it's oftentimes a lot more run-of-the-mill. But no, no real spy craft.
So what do you tell your reporters, your writers [about sourcing]? Are there any rules? ...
... Let's be realistic about it. You pick up the phone; you interview somebody. You're midway into the conversation, and suddenly your source says to you, "Can we go off the record?"
Most reporters at that point, their ears perk up and say, "Oh, I'm actually going to get some good information as opposed to the stuff I've been hearing so far." The last thing you want to do is chill that conversation by getting into a lengthy discussion and argument about exactly what the ground rules are.
I would suggest that at that point, you continue taking your notes and doing your interview, but that before you go to publication or before you go on air, you go back to your source and discuss with the source exactly what the ground rules are and be as precise as possible about how you want to use the information and what protections you're able to give. If you can't reach an accommodation on that, then you probably shouldn't use the information.
... In real life, what happens is you call up a source or someone calls you up and you have this conversation and either they say, "I need confidentiality," or "It's off the record."
Well, they say, "Are you going to protect me?"
Right. And once you have that information, it's hard to go back later on and say, "Well, you know, I've been working off this information for the last three weeks and --"
Well, I think you can go back and say, "I'd like to go over with you how we're going to use this information and how you expect it to be used." I think it's very rare that you're involved in a conversation, you hang up the phone, and you immediately go on the air or you immediately write, particularly when dealing with confidential sources.
Almost always there's a process that goes on where you discuss the information with an editor. You think about the value of it; you decide how you want to use it.
I frankly think we've overused off-the-record information, information that hasn't been for attribution. We don't work hard enough to get secondary sources to confirm information from anonymous sources. One of the things we really owe both our sources and you owe our readers or viewers is more transparency into exactly what the information is and how we got it.
How do you balance the difference between a source who, let's say, is out to embarrass somebody or destroy somebody and ... someone who is providing information that on its face is in the public interest.
There's another case called Bartnicki [v. Vopper], in which a radio station broadcast a tape that was illegally made, and they got hold of the tape without knowing who had done it --
Surreptitiously maybe.
Somebody had given it to somebody else who gave it to them, and they published, and they were sued. The result of the suit was the Court came down with a decision that said that this information was important, in the public interest, and therefore, even though it violated the law, they came down on the side of publication: Broadcast, in that case.
So that's a balancing test. ... It's the substance and the import to the public of what's being printed that's weighed against the loss of a source. If the public information is valuable, such as it was I think in the NSA [National Security Agency warantless wiretapping] case, and also in the [Eastern European secret] prisons case, if there was a balancing test applied, it didn't matter that the journalist would then not have to give up the source.
But you don't know that when you're out there asking somebody, "Talk to me, and I won't identify who you are." ...
I'm talking about you out there as a reporter. You come to me, and you say, "Tell me what you know," and I tell you all kinds of negative things about one of your colleagues, but I don't tell you anything that's really in the public interest. But you've already promised me confidentiality.
But I didn't promise I'd publish. ...
Well, Judy Miller didn't publish anything.
But she was party to an issue of a crime. The reason she was subpoenaed is because the prosecutor knew, even though she didn't publish anything, she had received that information. ...
The prosecutor didn't know what she had been told other than maybe what Mr. Libby said he said to her.
Yeah, well, he's the source. The source is identified. You're just another citizen. You're not protecting the identity of a source. The source has already testified.
But in her case, she said all she had received or been told about was a waiver, but it was a waiver that basically was coercive.
Well, she made that decision on her own, yeah. ... Everybody makes up their own mind. ...
What you're telling me is that your promise of confidentiality is conditional, depending upon the circumstances of what goes on?
No, it's conditioned on the source's identity. And the source controls the privilege, I think, which is another thing that is quirky about my view of things. A source can come to me and tell me something highly classified -- "Don't mention I told it to you" -- and five minutes later he can call [New York Times national security reporter] Jim Risen and go on the record. I can't stop him.
The source controls the confidentiality. So if the source tells a prosecutor, "I talked to Walter Pincus; here's what I told him," who am I protecting? That's exactly what happened in the Plame case. But in the Wen Ho Lee case, the source didn't go to Wen Ho Lee's lawyers, so I protected them.
... How important is the notion of anonymity, confidentiality, when you're trying to do this kind of reporting?
There is no way that you could do this sort of reporting without anonymity. And it's not just the no-name faction -- it's the no name, no job description and no agency sometimes. It's the journalistic equivalent of deep cover.
You have to give readers something, but there were times when I could only say "according to a U.S. government official." That's because, depending on what it was that I was saying, very few people would know it, or it was so sensitive that you wouldn't want a particular agency to face repercussions from that particular factoid that's in the paper. ...
... Do you put real names in documents? Do you use regular telephones? ... You don't want a phone bill sitting around.
Yes, you have to take extra precautions, and you have to think of all the ways that, if the government wanted to figure out who your sources were, that they would use to figure that out. Then you have to try to counter that by being extra careful and taking the extra steps that you wouldn't ordinarily have to, especially in this era.
It's not just that they work in a secret organization, but they work in a secret organization during the time in which the president of the United States has declared a war on terror. And this administration wants to control the flow of information in a way that is unseen for decades and is willing to go out there on the legal limb to stop that, just to control the flow of information. ...
You mentioned that it was lonely covering national security and the CIA. What do you mean by that?
Well, if you're covering Congress, you have a group of reporters, ... and you can just debate with them what you saw. ... There's a lot of give-and-take, not only among reporters but also other people. You have someone else to vet your own feelings with. ...
But in this world, it is really just different, because I'm there by myself. I'm never going to talk to anybody about the characters I'm meeting for fear that somehow they'd put two and two together and figure out who they were or whatever. You have to do it all by yourself. It's a very different approach. ...
It seems like the rules about confidential sources are changing, at least what the government is willing to accept, ... and the rules are changing about what the government is allowed to do in this new global war on terror.
Right. I definitely feel as a reporter, but also a reader and an American, that the sands are shifting, and the institutions that we thought were on concrete are shifting along with them. When you look at the court decisions on Guantanamo, sometimes they're contradictory. I think we're in an era in which so much seems new and decisions that were taken and looked so solid in the past are being questioned. ...
The New York Times recently has articulated a policy that it will do everything to minimize the number of anonymous sources used in the paper. But you've written that the best stories, the most important and sensitive ones, rely on the anonymous sources. So do you think the Times is being realistic?
It's an objective to strive for, to limit anonymous sources. I agree with that as an objective. If we could get these stories in the paper with all on-the-record attribution, that would be wonderful. That's the ideal. But unfortunately it's not the real world, and I think what their policy is saying [is], "We will strive for that, but we will also recognize what the real world is."
The Times also says that it will make every effort to describe the motivation of the anonymous source, the reason why they want anonymity, but you don't do that in your articles.
Not usually. ... I don't feel too strongly about it either way. I just think sometimes it adds words to a story that are unnecessary, when you try to describe in some benign way without identifying the person what their motivation was, which is generally what they're doing now. ...
In the story that's currently on the table, your book State of War, the story of NSA [National Security Agency] eavesdropping, it's all anonymous sources. ...
There are some sources who are named. There's a few.
... How do you judge whether these sources are telling the truth? And how do we as readers evaluate the information?
That's the challenge that you face as a reporter all the time. As you know, when you're covering national security issues, everything that you're writing about, anything of importance, is classified, particularly in the Bush administration, where they have classified virtually everything related to Iraq or the war on terrorism or domestic counterterrorism cases. There's really a cult of secrecy that's developed.
Anyone who tries to tell the truth and to get the story out can get in trouble if they're identified, and yet there is a public need to get those stories out. I think that is where the public misunderstands the role of anonymous sources. ... There's a sense that, oh, these are made-up people or that the reporter is fabricating or that these are people with an ax to grind, when in fact it's quite the opposite: It's people who are really determined patriots, I believe, to get the truth out with reporters who they trust, in a way that they believe will help the country. ...
That may be a leap of faith, but in this environment, where there is so much of a culture of secrecy in Washington today, I think as a reader, you have to take that leap. And the only way over time to determine that this source, meaning me, is credible is if the stories hold up. You have to determine what the track record of the reporter is. ...
... Could you talk sort of broadly about how anonymous sourcing in journalism has evolved since Watergate?
Yeah. I think that it's important in understanding the [Valerie] Plame case to understand how anonymous sourcing has changed over the last generation. During Watergate and before that, confidentiality was a tool that journalists would offer to reluctant sources to coax them to come forward. It was the journalist who would say: "If you won't tell me on the record, why not go on background? I won't name you. I'll protect you. You're safe."
Over the last 25 years, that has shifted to the point where confidentiality and anonymity are conditions that the source often imposes on the journalist before even talking to them in the first place. We've reached the point in Washington where today, it's a standing, understood rule that every press spokesman on Capitol Hill will be anonymous. Why? Because only the members should speak for his or her office.
So you have a situation where people who are paid by taxpayers' money are granted freedom to not be accountable for what they say on the record because everybody uses background all the time, and it's just the way of the world: "If you won't play by those rules, I won't talk to you." It's been a complete power shift in which what was once a journalistic tool for coaxing sources, whistleblowers, to come forward, has shifted over and is now in the employ of the source, not the journalist. …
How does the public feel about anonymous sourcing?
Well, anonymous sourcing is one of those fascinating issues, because the public hates them. The public hates having information withheld from them. We've seen this in surveys for years and years and years. It's one of the things that the public finds very, very irritating. Anonymous sourcing is extremely unpopular.
Yet the public supports the notion of a watchdog press. It's one of the few things that the public still likes about the press is that it serves this watchdog function. So journalists have this complicated reaction: How can I perform the watchdog function for you and not get whistleblowers and other sources to tell me things in confidence? I can't do one without the other.
If you press the public with a series of complicated questions, you'll get the answer that, while they don't like anonymous sourcing, if there's no other way to get the information, they understand and they accept it. …
We are looking at the current crisis around the issue of confidential sources. What is ABC News' policy with you when it comes to confidential sources, which you probably use every day?
I do. In terms of policy?
Do you have to tell them who your source is?
If asked I do. And I have, on a regular basis.
How many people do you have to tell?
I tell one person, who is the vice president [for editorial quality] who oversees that part, Kerry Smith.
Does Ms. Smith agree to keep that confidence, no matter what?
Yes. That's my understanding with her. I think that she would, as I would, be prepared to go to jail to keep that confidential. I wouldn't tell her otherwise. I want to keep faith with the sources.
How do you deal with the problem that came up in the Valerie Plame saga? How do you deal with the problem when your corporate owners receive a subpoena and they're going to give up what they've got?
The people I work with here, from ABC and the Disney Company, the lawyers, we have fought valiantly every single effort to get our material and with, I think, some success, just by putting up resistance and making it difficult. That's the best we can do. At some point the law rules, but we don't go down easy.
The New York Times is in that same situation around phone records. But when it came to Time magazine, [then-editor in chief] Norman Pearlstine told us a corporation cannot be civilly disobedient.
I wouldn't agree with that. In the end, it comes down, both for the corporation and the individual reporter -- and I would be prepared to face the fines or imprisonment for not revealing a source. And I think I'd get the support of this company.
You might get the support. Do you give the company your expense accounts?
Sure.
There's names on the expense accounts. I assume you use a company computer?
All of that. No, I understand what you're saying.
If they get a subpoena, what protects your source when the company says, "We're a publicly traded company, and we have to obey the law"?
Well, that hasn't happened here. You're saying one day might it happen? I don't know. But the law is not in our favor right now. Rulings have been against us. But at ABC at least, we are I think fighting as hard as anybody to make sure it doesn't get to that point.
Do you have any plan or security measures in place in that regard?
What do you mean by that?
Don't put names of confidential sources in computers that belong to the company.
As a practical matter, I can't really operate that way. I cannot operate using quarters and pay phones. I'm going to use the phone; I'm going to use my computer. And if the government is dead-set determined to crack into it and get our records without our permission, they'll probably be able to do that. But it won't be because I've given it up easily.
Do you tell that to your sources?
Yes.
You'll resist?
I will resist. I'm asked on a regular basis, "You'd go to jail, right?," and I said, "Yes, I would."
Do you tell them notes, outtakes, all kinds of material are in the possession of ABC, and they say they will resist?
As best I know we will resist. At some point maybe it will change, I don't know. And I don't give out this agreement willy-nilly; this is something you do only with the true confidential sources. But we'll fight as best we can. ...
Why are confidential sources important for reporters?
Because they're the lifeline to the truth, or a better version of what goes on. Particularly now, when government is all about public relations and image and impressions, you have to dig under that, and people inside with knowledge are not going to talk to you if you identify them. You learn your first week as a reporter that the member of the city council will tell you one thing off the record and say something often slightly contradictory on the record, so you want to get to that best obtainable version of the truth. What does the councilman really think? Well, you have to find some way to dig under that and get that person or somebody else to say these are the real facts, not what we want to present to the public to enhance our political position or our product or whatever.
Is there a difference between a confidential source who, in a more traditional sense, people think of as a whistleblower, someone bringing information out that was hidden, and a confidential source who represents access, someone with power who won't talk to you, like the city councilman you gave as an example?
Well, it's all to the end of providing information about what's going on. If you take the case of the decision to go to war in Iraq, that 16-month period is really important, what happened. It's not about access; it's about authentic information that you can verify. You're going to get maybe some confidential source [who] may consider himself or herself kind of a whistleblower saying, "Oh, this is what really occurred"; for instance, learning that President Bush decided to instigate serious war planning about 78 days after 9/11. That's war planning for Iraq, when he called Rumsfeld, took him aside.
Somebody else might talk about that and just consider they're giving the story of the sequence and not think that they're blowing the whistle. Some people are going to take that information, say, "Oh my God, that soon, in 2001, there was secret war planning going on?" Others will say, "Well, of course there was secret war planning going on."
So you don't see a distinction between the two? Because I think many people think that there's a difference.
When you're trying to get to the bottom of a story, there really isn't. Sometimes you can convert somebody who's talking who [is] trying to spin things. Sometimes you can get them to give you information, what you would call admissions against interest, and you recruit them as a whistleblower.
I think to a certain extent, I recruited President Bush as a whistleblower over hours of interviews in which he said things that lots of people might say are admissions against his interest.
There's a critique that's coming, especially from people who are on the Internet, about this kind of above-the-fray position that professional reporters in the mainstream media take, that they have no biases. Don't you get involved with people on a certain level of trusting them or wanting them to keep talking to you because they've been so helpful?
But trusting them means, as Ronald Reagan said, "Trust but verify." I attempt to verify everything, including things that longtime sources tell me. I learned a long time ago that sure, you have opinions, inclinations; you have relationships. But it's like a doctor almost. Who are you operating on? It might be a friend; it might be somebody you don't know, somebody you even might dislike. But you do the operation as best you can. That's what a reporter is doing: trying to assemble the information; trying to get what Carl Bernstein and I always called the best obtainable version. Does that mean it's perfect? No. It's what's obtainable.