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- Floyd Abrams
First Amendment attorney - Lucy Dalglish
Executive director, The Reporters Committee for Freedom of the Press - Randall Eliason
Former prosecutor - Mark Feldstein
Professor, The George Washington University - Nicholas Kristof
Columnist, The New York Times - Nicholas Lemann
Dean, Columbia University School of Journalism - Tom Rosenstiel
Director, Project for Excellence in Journalism - Bob Woodward
Reporter, The Washington Post
Is it possible that given the bad facts in this case, and given the decision to, in a sense, fight this on principle, that in the end what you did was make bad law?
It's possible. It's possible.
You got the appellate court to reaffirm Branzburg. Your friend [former Times counsel James] Goodale and allies have been trying to avoid a decision like that for decades.
Yeah. It just seems to me that there are some fights which have to be fought, and sometimes they have to be fought even [when] chances of winning are slight. At the end of the day, that's a joint decision. But we should remember that journalists themselves are going to be called upon to make the decision in the first instance of just what is it they promised and how far they're ready to go to defend the validity, the reality of the promises that they've made. ...
What does this case add up to for you?
To me, this case was a distraction from Washington reporters' abilities to do their jobs. It made life much more difficult for reporters who cover national security. It was a distraction, because all of a sudden, the news was what reporters are doing rather than what reporters are reporting.
You never want a reporter to be in that situation. You want the reporter to be the neutral supplier of information to the public. You also want reporters to not get sucked into political gamesmanship, and there's no question there was some of that going on in this case.
It did damage, I think, to the First Amendment; it did damage to the individual careers of a number of reporters; it did damage to the credibility of the media. And I think it made it easier for the administration to go after The New York Times and other news organizations when they were trying to aggressively report what's going on with the war in Iraq.
I think the important thing to remember about the Plame case, BALCO and a lot of the other high-profile cases that have been going on is these are cases where the potential crime is a conversation with the journalist itself. ... In a case like that, it's almost impossible to investigate without talking to the reporter, because the person who made the conversation, if you can identify them, is going to have a Fifth Amendment privilege not to testify [and incriminate themselves]. That leaves the journalist as probably the only witness to a possible federal crime, so I don't think it's accurate to criticize the prosecutor in the Plame case for going straight to the journalists. ...
The Plame case, again, was actually a fairly straightforward application of Branzburg. It was, again, another federal grand jury investigation, and the court had no problem finding that Branzburg applies: There is no privilege, and the reporters have to testify. So it was a very interesting, high-profile case, got a lot of attention, but it didn't really make new law. ...
I think the Plame case is an example of prosecutorial overreach, and it's as much true for the left as it is for the right. Without getting into the politics of it, I don't think that the leak involved should have gone to the point of putting reporters in jail, threatening to put reporters in jail, and actually jailing one of them for what was really a relatively minor leak of the kind that, frankly, occurs all the time in Washington, D.C.
What are we to make of [former Ambassador] Joe Wilson and his complaint that the government of the United States retaliated against him by revealing his wife's identity?
Well, there's no question that some elements in the White House did try to do that, but if you actually look at the genesis of that leak, it began as most leaks in Washington do. It was sort of idle gossip between a policymaker and a journalist -- in this case, [then-Deputy Secretary of State] Richard Armitage and Bob Woodward.
If you're going to start criminalizing those kind of leaks, which is what the nation's capital is based on, you're going to be throwing an awful lot of reporters in jail, and maybe an awful lot of government officials. Leaks are as old as the republic itself. George Washington was upset because some of his classified treaties and secret documents were leaked to the papers -- and P.S., Thomas Jefferson, his secretary of state, is the number one suspect. James K. Polk was all upset about secret treaties and Cabinet minutes, meetings [that] were leaked to the press -- and it was, P.S., his secretary of state, James Buchanan, who was widely regarded as the number one suspect.
Leaks are the way the world works. Leaks are the way Washington runs, and there's a reason for that. It's a kind of unofficial back channel for putting out trial balloons, for trying to influence policy behind the scenes, and then there's nothing terribly nefarious about it. It's a healthy mechanism in a democracy, and if you start trying to clamp down on that, if you start throwing reporters in jail for that, you're going to restrict the debate and really have bad consequences for democracy. That's my opinion.
Do you believe, though, from what you know about the case, as Joe Wilson says, that the White House was out to get him?
Yeah. And guess what, Joe Wilson? Move over. The White House is out to get a lot of people. And every White House is, every administration. It's part of the tug-of-war of policy that you try to advance your interests and undermine your opponents'. ...
I think merely whispering negative information about Joe Wilson's wife the way this administration did does not constitute some enormous change in the way things work in Washington, and does not constitute the kind of criminal behavior that really ought to result in people going to jail.
So did the drumbeat of article[s], political statements and so forth that resulted in the appointment of a special prosecutor [Patrick Fitzgerald] by some in the press who don't like the Bush administration, in a sense, blow up in their face?
Yes, I think it did. Maybe it was poetic justice. But you can't have one standard for your side and another standard for their side, one requirement that reporters out their sources when they're on the right, but not when they're on the left. And if you're going to protect reporters when they interview Black Panthers and drug dealers, you also need to protect them when they interview administration officials, even if you find them noxious, too. ...
Pat Fitzgerald did something in this that had never been done before in a leak case. He issued waiver forms to the people in the White House. That seemed to be a new standard, a new way of doing things, because we've heard the same thing is being done, for instance, in the NSA [National Security Agency] eavesdropping [case]. So is this another unintended consequence?
... Waivers may pretend to be voluntary, but they're really not. When a government official is presented with a waiver and [told], "Here, sign this if you like," they recognize if they don't sign it, it's tantamount to an admission that they themselves have been the source. So you are requiring people, in essence, to sign away their First Amendment rights to free speech. ...
And that may be part of a legacy of the special prosecutor, Patrick Fitzgerald.
Sadly, I think that's going to be the greatest legacy of this prosecutor, because the actual case that created all of this was really a tempest in a teapot. It was much ado about nothing. It has no lasting ramifications. But implementing nonvoluntary waivers on a permanent basis, that's a really pernicious legacy that may last for decades.
And the press itself, in its handling of the Valerie Plame story, there seemed to be this typical, almost pack mentality once the story broke, that the White House looked like they had leaked classified information. ... Did the press really get lost in the middle of this?
Yeah. I think the press was rather misguided in the way they covered this. You know, the press sometimes are like a bunch of sparrows, and when one flies off the telephone line, then all the rest follow in a pack. I think the press saw this as potentially criminal behavior by the White House and glommed onto it in kind of gotcha-journalism fashion without really thinking through what the long-term ramifications would be for themselves, but, more importantly, for the country.
This isn't just about the press's rights; it's about the public's rights. The press's rights matter, because they are the conduit for getting information to the public. And when the press is curtailed, when the press is eroded, when the press is censored, it's the public that's hurt. It's the public that doesn't get the information it needs in a democracy to make intelligent voting decisions. That's why it matters -- not because it matters whether or not some newspaper gets a scoop, but because it affects every one of us as American citizens.
In your estimation, did leaking Valerie Plame's name damage national security?
Unquestionably, leaking Valerie Plame Wilson's identity hurt national security in a couple of ways. One is that she was an NOC -- a non-official cover -- and anybody who had had contact with her in her role as an energy analyst was therefore jeopardized. We don't know exactly who those people are in other countries, but everybody in that network was in jeopardy. More important, her cover was an energy company that had to be closed down. That cover couldn't be used for anybody else, and it costs a lot of money to set up a fake identity for somebody. It costs much more to have an NOC than to have somebody who's under official cover, which is much more customary.
But when you blow an NOC, you're also just sending a message to the intelligence community that you don't value these people. The NOCs are the ones who take all the risks and get none of the credit in the intelligence community. They are the people we should be cherishing most. And to blow Valerie Plame Wilson's identity that calmly and then to make light of it afterward seemed tremendously damaging to national security.
How do you feel about how the Plame investigation has played out to this point?
I think that this investigation by the special prosecutor [Patrick Fitzgerald] has been a disaster, as they all have been -- disastrous not only for the Bush administration, but also for the press, partly maybe because of the way that we played our legal angles. I think we undermined public confidence in journalism and undermined our ability to protect sources in the future, and the upshot may well be that you will have more reporters going to jail before long. ...
There's been a trend in recent years of prosecutors subpoenaing reporters to force them to identify sources. ... That is going to put us in a real bind. ... That goes to the heart of how we get information in this country and other countries. We talk to people and promise them confidentiality, and as a result, we get information. That is how journalism works. If we can't promise confidentiality, and if whistleblowers can't feel confident they can supply information securely and have their identities preserved as secrets, then they're not going to give us information, and it will be a lot harder to get information out there to the public.
If you look at great stories that have been crucially important for the public, whether they be the Pentagon Papers or reports of Abu Ghraib or NSA [National Security Agency] wiretapping, all those depended on this system of promising confidentiality. It's a lousy system, because it does allow people with axes to grind to present information that often isn't comprehensive, but it's the best we've got, and I'm afraid that in the long run, the leak investigation is going to profoundly alter and undermine that system.
Let me take you to another subject. Maybe you could speak in general, because you've written about the [Valerie] Plame case a year ago, about how it exposed journalists and their sources.
OK. So the Plame case is not really about this world of lonely, courageous whistleblowers who leak material about government corruption to journalists that we all like to think that the journalist-source relationship is all about.
Instead, it's about another part of the journalistic world that isn't, frankly, very attractive, and that is the cozy relationships between Washington reporters and high government officials. They're talking all the time. The reporters have their self-interest, the officials have their self-interest, and you can argue that it's healthy for the reporters to maintain this line of communication so they can tell readers what's going on. But part of what happens is an administration uses that relationship essentially to slime its enemies, and that's what happened here.
This man, [former Ambassador] Joe Wilson, popped up as essentially a public and fairly damaging critic of the Bush administration, and various people in the administration whispered in the ears of various reporters things meant to impugn him. That's how Valerie Plame, his wife, got pulled into it.
In other words, the basic argument as I read it -- it's all complicated and shadowy -- was, "Hey, you need to know something about this guy," and that is, "the only reason he was over there in Niger is that his wife is a CIA agent, and he was a little down on his luck, and she was looking for a freelance assignment to throw him. So that's why he was there." I think that is where the whole case seems to come from. So that particular reporter-source interaction is not the wondrous part of journalism that we all like to brag about, but it goes on.
But the administration's side -- Mr. Wilson wrote an op-ed piece in which he spoke about how he believed that it was [Vice President] Dick Cheney who had, in a sense, dispatched him, through the CIA, to do this mission -- so all the government was doing was trying to say, "That's not true; it was because his wife put him up for the job and nominated him to go do this."
In a perfect world, these people at the high levels of the Bush administration should have flipped through their book of legislation and said, "There is a law against exposing a working CIA agent." In fact, even if it weren't a law, they shouldn't have done it, for all the obvious reasons. They should have had the thought, "We're so mad at Joe Wilson because we just dispute his version of why he was sent there, but unfortunately we have to bite our tongues, because we're not allowed to out a CIA agent." That is what should have happened in this case, but it's not what did happen.
And what does this case say about the relationship of the Bush administration to the press?
Well, what it says to me is sort of counterintuitive, because everybody goes around saying, "This administration is the most leakproof and the least hospitable to the press ever, the most hostile to the press ever." I've covered Washington on and off for a long time, and I don't disagree with that. This is an administration where you can't just stroll into the White House and the Executive Office Building and phone people up and go see them. It's pretty locked down.
But what this case shows is that even the Bush administration, because of the way Washington works, is in constant, chummy, off-the-record contact with the press.
In terms of the big picture for First Amendment freedom of the press, what do you think the long-term consequences of the Plame affair will be?
I think the Plame affair was a sobering moment for journalists and for the public of just how far out of control the use of anonymous sourcing has become.
It was a moment in which journalists realized they've lost a tool, that confidentiality is no longer something that is in their employ, and I think that there will be some healthy pulling back. Even before the Plame case was over, you saw new policies at The New York Times, at The Washington Post and at a host of other news organizations in which, if a source asks for anonymity, now several news organizations are going to explain not only in some cases why the request was made, but even why the news organization agreed to honor the request. …
And now we have Patrick Fitzgerald in court in New York getting the records of The New York Times in a completely separate story. We have him getting Judy Miller to testify in a separate trial in Chicago related to a terrorism case [involving mosques accusing of financing terrorism]. And we have the Justice Department in general, if you will, more willing to subpoena reporters, whether in San Francisco over BALCO and elsewhere. So it's had a significant change in the behavior of the Justice Department, if not the administration as a whole.
OK. But the "it" here is a whole series of things and an attitude. My point is that I think it's a serious public policy mistake by the Bush administration and prosecutors to do this, and it will reap bad things. It will make it more difficult for us to do our job. Suppose it turns out in this administration or another administration something really bad goes on -- not necessarily criminal, but in the national security area or the kind of things we saw in the Nixon administration. You need be able to get at that, and you need the confidential sources. If we can't establish those relationships of trust, if it's more difficult, we're not going to get there. We're not going to get there fast enough.
Now, as all of this has washed out, I know I can still function with confidential sources, have those relationships of trust, and in a practical sense, it has not hurt my ability. In my latest book, I have all kinds of notes of classified meetings, classified documents, private conversations on sensitive intelligence matters and so forth.
So I'm able to function. The question is, can you do it for a daily newspaper or television station? Can you get it really fast enough? And speed is important. And they're slowing down the process.
They are slowing the process down?
They are slowing it down. But I don't think in-depth reporting has been dealt a fatal blow by any means.