The post-Pentagon Papers fraying of the relationship between the federal executive branch on one hand, and the press on the other, had produced a series of clashes in which the Department of Justice sought, in the absence of a federal shield law, to force reporters and news organizations to disclose sensitive information, including particularly the identities of their confidential sources. This process had been unfolding gradually over three decades. It has accelerated markedly since the so-called war on terror began after the attacks of September 11, 2001.
The first high-profile post-9/11 press freedom case was launched in 2004. Special Prosecutor Patrick Fitzgerald had been appointed (ironically, under pressure from several national daily newspapers) to get to the bottom of a suspected leak, from somewhere in the Bush administration, of the covert identity of Valerie Plame, wife of diplomat Joseph Wilson, who had been feuding publicly with the administration over the lead-up to the Iraq War. Columnist Robert Novak, the first reporter to disclose Ms. Plame’s status as a covert CIA agent, attributed the information to “two senior administration officials.” Other columnists followed. The suspected violation of the Intelligence Identities Protection Act threw all of Washington into an uproar. Fitzgerald issued grand jury subpoenas to a number of prominent reporters, including Matthew Cooper of Time, Tim Russert of NBC News, and Glenn Kessler and Walter Pincus of The Washington Post. Another, Judith Miller of The New York Times, served an 85-day prison term before she finally testified after obtaining a waiver of confidentiality from her source, Vice-Presidential Chief of Staff I. Lewis “Scooter” Libby. Libby’s waiver to Miller was widely believed to have been coerced by Fitzgerald’s insisting that all staffers sign, waiting to see who would refuse.
The Plame leak investigation proved particularly frustrating for the newspapers, their reporters, and their lawyers. In the first place, because of the considerable secrecy surrounding all investigations into leaks of classified information, it was difficult for the media’s lawyers to argue that the judge should follow Justice Powell’s Branzburg concurrence and conduct a balancing test, weighing the importance of the information for the government’s prosecution against the damage that would be done to the reporter’s ability to do her job if disclosure were coerced. Of course, there is never assurance that a given judge would adopt the Powell approach rather than conclude, simply, that the majority in Branzburg did not adopt a balancing test but, instead, rejected any journalist’s privilege entirely. Chief U. S. District Judge Thomas Hogan ruled that Fitzgerald’s need for Miller’s testimony was sufficiently critical to override Justice Powell’s notion of a qualified privilege. The Times’s lawyers, without access to the secret record, could hardly argue effectively to the contrary.
Yet there were other, equally disturbing problems with the Miller contempt citation that Chief Judge Hogan issued and the U.S. Court of Appeals for the District of Columbia Circuit affirmed. (The Supreme Court turned down further review.) As David B. Rivkin, Jr., an expert in national security law who served in the Reagan and first Bush administrations, and Bruce W. Sanford, a First Amendment practitioner, wrote in an op-ed column in The Wall Street Journal, it was hardly clear that there was any violation of the Intelligence Identities Protection Act in the first place.25 “The law,” they wrote, “requires a prosecutor to show that a person has disclosed information that identifies a ‘covert agent’ (not an ‘operative’) while actually knowing that the agent has been undercover within the last five years in a foreign country and that the disclosed information would expose the agent.” They proceeded to demonstrate the high likelihood that these conditions did not exist in the “leak” in that case, and that therefore journalists were being coerced “for refusing to divulge their sources to a grand jury which never really had a crime to investigate.”
Former Solicitor General Theodore B. Olson, by then practicing law in Washington and stepping in at the eleventh hour to represent Time magazine and its reporter Cooper, wrote in even starker terms of how the combination of the vagueness of the law and the attitude of the special prosecutor were deadly for press freedoms: “If special prosecutors can be empowered to investigate allegations of conduct that isn’t first established to be criminal, and to interrogate witnesses—especially reporters—about memories of distant conversations with sources regarding conduct that isn’t plainly criminal, there is no politically motivated allegation that can’t be turned into a criminal cover-up.”26
The fallout from Miller’s incarceration was predictably destructive. The Associated Press reported in July 2005 that the Cleveland Plain Dealer was holding back from publishing two stories that relied on leaked documents. The paper’s editor, Doug Clifton, explained that it was the first time the paper felt pressed to take such a precaution.27 On December 9, 2004, Jim Taricani, a reporter for a television station in Providence, Rhode Island, was incarcerated for his refusal to tell a federal judge the source of an FBI surveillance tape of a bribe being transacted. (The judge’s one concession was to assign the 55-year-old reporter to home confinement in view of his having suffered a heart attack and received a heart transplant.) After being given permission by his source, a local lawyer, Taricani disclosed the source’s identity and was let out of confinement. The lawyer, Joseph A. Bevilacqua, Jr., was prosecuted, convicted, sentenced to 18 months in prison, and disbarred.
There was something new about the atmosphere created by the Miller fiasco. The Reporters Committee for Freedom of the Press did a survey of pre-Miller press subpoenas and concluded that no American journalist spent “any significant amount of time behind bars” for refusing to obey a command to divulge a confidential source. Suddenly, noted Matt Welch in his Reason magazine column, there was a cascade of subpoenas. “Now journalists are joining their fellow citizens as targets,” he noted ominously.28 While “only 17 federal subpoenas were issued to unearth journalists’ confidential sources between 1991 and September 6, 2001,” wrote Welch, “that number may have been surpassed in 2004 alone, when…six reporters were found in contempt of court for refusing to name sources who cast aspersions on former Los Alamos scientist Wen Ho Lee.” These contempt citations, Welch noted, were in addition to those emanating from criminal investigations. The trend, in other words, was not only to subordinate the journalist’s privilege to government claims of exigency in criminal cases, but also to elevate the right of a private citizen in a civil defamation lawsuit to force the production of notes and testimony from reporters. The DOJ’s assault on the press was having unforeseen consequences.
As Lucy Dalglish, publisher of The News Media and the Law and executive director of The Reporters Committee for Freedom of the Press, noted in the fall of 2004, “nearly every major media company in the country is fighting at least one subpoena from a federal prosecutor.”29 Agencies other than the DOJ began to get similar ideas. It was reported in February 2006 that the Securities and Exchange Commission “took the rare step of issuing a subpoena to two journalists…when it ordered columnists at two Dow Jones publications to provide information about conversations they had with stock traders and analysts.” When it began to draw attention, the subpoena was withdrawn, “at least for the time being.”30
Technically, refusal to comply with the vast majority of subpoenas issued to reporters and news organizations results in a finding of civil contempt. Civil contempt is meant to be coercive; the penalty is imposed until the recalcitrant witness relents and provides the testimony or documents demanded by the grand jury and prosecutor. The only limit to the length of a prison sentence is the life of the grand jury, which is 18 months. Upon the expiration of a grand jury’s term, it is possible to renew it for an additional 18 months. Thus, it is theoretically possible to extend coercive punishment for a very long time unless the judge concludes that no amount of coercion will work with the witness. Even if a judge makes such a finding, he may then cite the witness for criminal contempt and impose a sentence of under six months without giving the reporter a jury trial. If the judge wants to im
pose more than six months, he must accord the reporter a jury trial, but in exchange for this benefit, the reporter then risks a criminal contempt sentence with no limit imposed by law. Courts have said that such contempt sentences should be “reasonable,” but this term has not been defined. The potential for an effective tyranny over the press resulting from this contempt system is obvious—utterly vague standards for when a reporter can be ordered to comply, and unlimited fines and sentences for recalcitrance. The press lives under a veritable Sword of Damocles, all in a system that purports to have a free press.
A little recognized aspect of the contempt laws presents a news organization with another threat as potent as the jailing of its reporters and executives. Since a corporate news organization is not an entity that can be imprisoned, the punishment for corporate contempt typically is the imposition of monetary fines, often escalating daily as the news organization’s recalcitrance continues. Such escalating coercive fines are well known in the labor relations arena when courts seek to end unlawful strikes by threatening to bankrupt the unions. During the grand jury probe into the Valerie Plame affair, for instance, a Washington, D.C., federal judge fined reporters Matt Cooper of Time and Judith Miller of The New York Times $1,000 per day each in addition to ordering them to jail until they testified. (The fines and sentences were stayed pending appeal.) Most such fines, when imposed on individual reporters, are typically paid by the news organizations for which they work. If it is the news organization itself that possesses the documents under subpoena, then the fines may be imposed directly on the corporation.
Since there is no limit to the fines that may be imposed, a judge has the power to bankrupt even the wealthiest media organization. When Matthew Cooper deviated from the path taken by Judith Miller and decided to testify, the cause was a decision by Time to turn over to the grand jury the notes and documents relating to Cooper’s reporting. It was widely speculated at the time that the decision was based more on corporate financial considerations than on any sudden inclination of the magazine to do its patriotic duty and assist the grand jury. The director of the University of Minnesota’s Silha Center for the Study of Media Ethics and Law, Jane Kirtley, told Newsday that “This [decision by Time] is sending a really dangerous message to prosectors [sic] and judges all over the country, who will now see the efficacy of imposing a fine on the news corporations.”31
In short, the government’s and the court’s contempt powers are awesome. They not only can be imposed under the vaguest of circumstances and legal tests, but they are theoretically without limit in terms of the destruction that may be done to the recalcitrant reporter and media organization. If it is true, as the libertarian aphorism has it, that “the power to tax is the power to destroy,” then it follows with even more force that the power of a court, sitting without a jury, to impose unlimited contempt sentences and endless escalating fines is the power to destroy any recalcitrant news organization. Thus is the free press, ostensibly protected by the First Amendment, no more secure from utter destruction than was the Arthur Andersen accounting firm.
The Pentagon Papers case apparently did not cow The New York Times into never again disclosing state secrets. On December 16, 2005, the paper ran an exposé, written by reporters James Risen and Eric Lichtblau, telling the nation that shortly after the September 11 terrorist attacks President Bush had authorized the secretive National Security Agency (NSA) to eavesdrop, without legally required court approval, on massive numbers of telephone calls made from or to a foreign nation. Those familiar with the NSA’s so-called data-mining techniques had known, or suspected, for years that the agency had the capability of monitoring any and all communications traffic in which it had a national security interest (and maybe even traffic in which it did not have any such legitimate interest). Still, the Times story landed like a bombshell. To some, the paper’s disclosure was an act of patriotism and national service, as it unveiled a surveillance program of controversial legality (and constitutionality), that would provide far more eye-opening information to the American people than to its enemies. To others, publication of the story was an act of espionage (if not treason) in time of war. Under this theory, the Times was communicating to the nation’s enemies highly classified information about the extent of the NSA’s monitoring of their communications and activities, causing them to abandon such communications modes in favor of others not susceptible to this type of data-mining.
Political observer Jacob Heilbrunn wrote in a New York Times book review that “conservatives have been huffing and puffing about prosecuting The New York Times for treason” as part of a battle against perceived “liberal treachery.” All true, perhaps, but Heilbrunn makes the mistake of dismissing the rant against the Times as “nonsense.”32 To the contrary, an indictment of the newspaper was a harrowing potential reality. Where the Nixon administration failed to dispatch its most irksome media critics under the espionage laws (primarily because of the intervening Watergate scandal), the Bush administration was making noises about following through.
Once again, the question arose whether the government could, and should, seek to prosecute the reporters, as well as the publisher, editors, and others who participated in putting out the story, including The New York Times Company itself. It was entirely possible, given the government’s 30-year track record, that the administration just might want to make an example of the Times by going after publisher Arthur Sulzberger, Jr., executive editor Bill Keller, and the reporters themselves, namely, all those who were involved in either producing the stories or deciding to publish them.33 The mere fact that it had not been done before would be cold comfort. The reach of federal statutes covering espionage, mail and wire fraud, dissemination of stolen government property, conspiracy with government officials to disseminate classified information, perhaps even treason, was dangerously uncertain, even without resort to the old standbys of mail and wire fraud. Perhaps the most comfort that the media parties could take from the situation in which they found themselves was that if the government were to indict, it would have to convince, beyond a reasonable doubt, 12 out of 12 jurors, likely sitting in either New York City (the Times’s hometown) or Washington, D.C. (not known for prosecution-oriented juries), the two districts where the “criminal” acts likely occurred, that the reporters and editors had done the nation a disservice by disclosing details of an arguably illegal and unconstitutional program.
Such a prosecution would not be without problems for still other reasons. It was not absolutely clear that the paper was telling people what many did not already know, since books had been written over the years about the NSA’s inner workings.34 Nor was it believable that terrorists did not have access to the same information the rest of us had. In a sense, the only thing truly new in the Times story, it might be said, was the revelation that this program was being conducted pursuant to a presidential order and without benefit of authorization by the secret national security court established in 1978 pursuant to the Foreign Intelligence Surveillance Act.35
If the only thing new about the story was indeed the disclosure that surveillance was being conducted unlawfully, could it be said that the newspaper was guilty of espionage or any other crime? This difficult question had to be considered by the reporters and the paper in making an educated guess beforehand as to what risk was entailed in publishing such a story. The article won a Pulitzer Prize, but the question lingered as to whether the administration, which swore to undertake a criminal investigation into the leaks as well as the publication, would follow through or would be satisfied simply to bluff. Yet whether an indictment would follow is beside the point. The Sword of Damocles, with its in terrorem impact on every move made by a reporter, newspaper, or other media outlet continues to hover over the head of journalism.
The Boston Globe’s Sacha Pfeiffer told an arresting tale in a piece she wrote for the paper’s Sunday “Ideas” section in late 2007.36 The reporter was trekking on a beaten path through the Himalayas in Nepal when s
he and her companion came across a checkpoint manned by Maoist insurgency guerillas who demanded a 300 rupee (approximately five dollars) fee for permission to pass. The State Department, however, had added this group to its terrorists list.
“In theory,” wrote Pfeiffer, “this could expose me to prosecution, since multiple laws, including the USA Patriot Act and something called the International Emergency Economic Powers Act, prohibit US citizens from funding terrorism.” When she returned, she found herself worried about the payment, and she began to make some phone calls “to ask about my legal status,” including calls to the departments of Homeland Security, Justice, and State. “They squirmed a bit, told me Americans are advised not to travel to Nepal, mentioned the Maoists’ terrorist status, and noted the relevant statutes.” But what about the advice as to what to do this time, and in the future should the reporter face a similar situation? “Their underlying message was this: Don’t worry about it.” But, of course, this “advice” was not in writing and, besides, a reporter does have to worry about it if he or she comes back with a story critical of U.S. government policy or conduct. The more reporters involve themselves in covering the inner workings of those classified by the government as enemies of the nation, the more the reporters need to worry that they will be questioned about how much money they spent, on what and to whom. If government officials find themselves squirming when they are asked to interpret the laws they are tasked with enforcing, surely the Fourth Estate should squirm even more.
CHAPTER EIGHT
Three Felonies a Day Page 29