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Journalist's Refusal to Testify as Refusal to Be Government's "Lap Dog":

The post below reminded me of something I wrote about this in 2004, about a particular -- and particularly unpleasant -- argument that some defenders of the journalist's privilege make. The incident I noted involved subpoenas related to the trial of Lynne Stewart, a lawyer who helped her client -- a convicted terrorist leader -- communicate with his followers:

"Our sources will dry up if sources . . . think that anything they tell us will be repeated against them in court. Why would you speak to a reporter if those words are going to be read back against you in court?" said George Freeman, in-house counsel for The New York Times.

"We are supposed to be the watchdog of our government, not its lap dog, so we shouldn't be in bed with it testifying," Freeman said....

Isn't this rhetoric about not being the "lap dog" of the government or "in bed with" the government pretty appalling? All of us, as citizens (or even noncitizens), generally have a duty to testify when called on to do so. That duty is part of the legal system's attempt to learn the truth, and provide justice to the government and to individuals alike.

This duty applies even when it may deter some constitutionally protected speech. If I talk to you about something, or e-mail you something, and that becomes relevant to some civil or criminal case (e.g., because it's relevant to determining my actions or intentions), you can be compelled to testify about it. This may well deter me from saying certain things to you: A businessperson, for instance, might be reluctant to express potentially racist, religiously hostile, or sexist views to people, for fear that those views may be discovered and used against him in a discrimination case.

Private conversations about politics are just as constitutionally protected as media reporting, and just as valuable; people's attitudes are often molded as much about what they hear from their friends and acquaintances as by what they hear from strangers in the media. Yet we accept that the duty to testify may well deter such conversations -- it's part of the price we have to pay for getting at the truth in criminal trials.

Nor does a citizen become a "lap-dog" of the government, or get "in bed with" the government, because he does his duty (whether voluntarily or involuntarily), and helps the jury learn the truth about what happened. It seems to me arrogant, contemptuous, and contemptible for media representatives to suggest otherwise -- to suggest that there's something base or some sort of sell-out in a person's responding to a subpoena.

I should stress that there are sensible arguments for a limited journalist's privilege, especially a common-law privilege (like the psychotherapist-patient or civil attorney-client privilege) rather than a constitutional one; and the desire to encourage confidential statements to reporters, which can (sometimes) help enlighten the public and (sometimes) even enlighten law enforcement about crimes and scandals that law enforcement might otherwise not have learned about, and might effectively investigate even without subpoeaning the reporter. I speak here only about a particular argument, which strikes me as unsound and as high-handed on the part of the pro-media-rights forces.

Related Posts (on one page):

  1. Journalist's Refusal to Testify as Refusal to Be Government's "Lap Dog":
  2. "Loss of Press Freedoms in Post-September 11 America":
Mark Field (mail):
Is the argument you quoted really all that different, on the merits, from the justifications given for the attorney-client privilege? After all, it's really just a variation of "my client won't talk to me if s/he sees me as an agent of the government". It's the job of a criminal defense attorney to oppose the government, not to cooperate with it. To the extent the press serves the same function, a similar privilege might be appropriate, as you note. Thus, I don't see the particular argument as in any way unsound even if it might have been articulated better.
2.23.2007 4:40pm
Justin (mail):
"All of us, as citizens (or even noncitizens), generally have a duty to testify when called on to do so. "

Though much of this post is a rehash of the previous post, and subject to much of the same criticisms, I think there is a clear distinction, that you are blurring and that George Freeman is *not* attempting to breach - that is the journalist as journalist rather than the journalist as private individual.

The second concern, which exists, though is not that great, is that selective prosecution and forced divulging of sources can be used to influence the press a great deal, by putting the screws to "unfavorable" press and giving "cozy" press a free ride. That's a pandora's box to discuss, and is probably not as serious a problem as one can draw it out in theory, but when you conflate the press with the rest of society, you risk losing the perspective of that concern entirely.
2.23.2007 4:45pm
Bpbatista (mail):
Just another example that the "press" believes that it is above the law and that it serves a higher "good" which only it is able to discern and protect.
2.23.2007 4:46pm
anonVCfan:
So basically George Freeman has aligned himself with the "stop snitching" movement...
2.23.2007 4:47pm
e:
Especially troublesome when the journalist admits to aiding a crime by writing "anonymous due to the disclosure of classified material." But perhaps every journalist should have the authority to declassify based on his discretion, its only national security, and they aren't beholden to silly oaths. I realize there is an overclassification problem, but am I the only one who thinks Pentagon Papers = lazy and unethical rush to publish.
2.23.2007 4:56pm
PatHMV (mail) (www):
The "off the record" source for a reporter wants to influence actions without taking any responsibility for doing so. That's the bottom line, with all off the record conversations (and I've had many myself as a government official). Sometimes that's for the good (because the individual might be 'held responsible' by nefarious higher-ups trying to hide their crimes), and sometimes that's for the bad (because the individual wants to baselessly, maliciously slander someone anonymously).

This is in contrast to many attorney-client communications, in which the client is trying to evaluate their own conduct or exercise his right to effective assistance of counsel under the 6th Amendment.

The confidential source is always trying to communicate something to the public, but without responsibility. That's not particularly a good reason to grant confidentiality.
2.23.2007 5:08pm
holdfast (mail):
MF: "It's the job of a criminal defense attorney to oppose the government, not to cooperate with it. To the extent the press serves the same function, a similar privilege might be appropriate, as you note. Thus, I don't see the particular argument as in any way unsound even if it might have been articulated better."

The defense attorney and his client have this privilege so that the attorney can adequately represent him in court, allowing him to mount an effective, constitutionally protected, defence. Without this privilege, any disclosure to the defending attorney would be akin to self incrimination.

So, the press now sees itself as an "agent" of those opposed to the government - would that mean that their "clients" are the Democrat Party, Kim Jong Il, Al Queda and/or Iran? I guess it depends on how you define "the government".

Funny, but I thought that the press was supposed to report the facts as they find them, whether helpful or adverse to the interests of the party in power, not to be a reflexive opposition party. Guess I missed the memo.

Anyway, why is it a good thing to protect law-breakers who leak because they feel like it - the SWIFT banking case being a good example. There the government was running a program that was not only legal but was essentially a recommendation of the sainted 9/11 Commission - yet it was illegally compromised because someone in government and some journalists didn't like it. The government was not breaking the law, yet the leaker(s) certainly did - why should this be protected? I could see an argument to protect whistleblower sources and the journalists they leak to if they are reporting on illegal government activity, but why protect leaking by spiteful criminals?
2.23.2007 5:12pm
Hattio (mail):
Here's another possible distinction between reporters and laypersons. The reporters are generally very easy to subpoena. A newspaper reporter is laying low so he can't be subpoenaed; simply subpoena the organization to bring the employee most knowledgeable about the sources of the story in question. At least with an individual, the government has to go to the trouble of physically finding the person and giving them a subpoena.
2.23.2007 5:14pm
Steve:
I agree with the journalist-as-watchdog paradigm, so no, I don't find this rhetoric offensive in the least. Presumably, if a reporter witnessed a car accident on the way to work, they'd be as happy to cooperate with the authorities as anyone else.
2.23.2007 5:45pm
rothmatisseko (mail) (www):
Publishing classified information is necessary for oversight of our government when our leaders lie at every turn, on issues ranging from surveillance to kidnapping to torture.
2.23.2007 5:49pm
Taltos:

I think there is a clear distinction, that you are blurring and that George Freeman is *not* attempting to breach - that is the journalist as journalist rather than the journalist as private individual.


Could you please direct me to the section of the constitution that creates a special class for journalists ? I was under the impression that they were citizens like everyone else regardless of the fact that they write stories for newspapers.
2.23.2007 5:59pm
ed o:
yep, I want those secrets out there. I sure hope the terrorist out there monitoring CNN or the New York Times know that our forces might be going after them from Ethiopia. Our present media probably would have published the details of the Normandy invasion if they had been around in the '40's. I sure hope the results today will be better than than hypothetical for our nation.
2.23.2007 5:59pm
DaveN (mail):
rothmatisseko:

Who gets to decide when "our leaders lie at every turn, on issues ranging from surveillance to kidnapping to torture"?

Is the test one of not liking the current President? Would leaks be justified by Republicans when Bill Clinton was President on issues of national security because they thought he "lied at every turn"?

What about during a presumptive Hilary Clinton Administration? Would someone's subjective belief that she or someone in her Administration lied justify publishing classified information?

For all the screaming against Nixon and the publishing of the Pentagon Papers, the Nixon Administration's attempt at prior restraint had more to do with things that occurred during his predecessor's Administration.
2.23.2007 6:02pm
Elliot123 (mail):
Are we all allowed to be watchdogs of government, or is that role reserved for a particular group of people?

If the secretary of the local alderman tells me the alderman is taking a bribe, and I email that info to a friend without revealing my source, am I acting as a watchdog of government? Do I deserve protection from testifying? Suppose I email two friends? Ten friends? One thousand people? Suppose I go to the local mall, mount a box, and tell the shoppers?

Suppose someone says they will pay me $100 for telling them the information? Am I then entitled to protection? Am I more entitled to protection because I am willing to profit from my information?

Suppose I publish a daily blog detailing my day's activity? If write that the alderman is a crook, am I entitled to protection? If I don't include that detail am I still entitled to protection? Does the fact that I write a daily blog shield me from testfying to anything I claim I intend to write about?
2.23.2007 6:22pm
logicnazi (mail) (www):
I don't think this is a very charitable interpratation of the rhetoric in question. Eugene presents this rhetoric as if it was the same argument a gang member might use not to squeal on his buddies but this totally ignores the context which the argument is made in and the fact that those who make the argument wouldn't endorse such an interpratation.

Whether you agree with it or not the underlying assumption behind this rhetoric is that journalists have a special role to play as investigative agents keeping a check on government misconduct and informing the public. The idea behind the lapdog rhetoric is that by requiring the journalists to report on the results of their investigations they in effect become government agents doing the police's investigations for them. In particular the lapdog rhetoric is meant to refer back to the idea that journalists cannot hope to accomplish this vital oversight function if they are simply seen as police or government proxies as no one will reveal misconduct in classified operations or other information they may be punished for exposing.

I mean you might not buy the argument in the journalist situation but what if we tried the same rhetoric when talking about the red cross. Suppose the government passed a law requiring anyone who had meetings with prisoners of war to reveal the content of their discussions to military officials. People might well use rhetoric demanding that the red cross not be turned into government lapdogs when what they mean is that it is vitally important that the red cross retain it's independence from any government and not that the individual citizens who make up the red cross are somehow above the law.

Whatever you think of this argument it is at least plausible and deserves reasonable consideration not be dismissed out of hand.
2.23.2007 6:32pm
Mark Field (mail):

The defense attorney and his client have this privilege so that the attorney can adequately represent him in court, allowing him to mount an effective, constitutionally protected, defence. Without this privilege, any disclosure to the defending attorney would be akin to self incrimination.


Yes, and exactly this same logic applies to whistleblowers, though there the constitutionally protected right is free speech (in the service of voters' right to know).

I should clarify that I don't think any such privilege would apply to Josh Wolf's case, nor to some other recent cases. It should apply in some cases, though.
2.23.2007 6:33pm
wooga:

To the extent the press serves the same function, a similar privilege might be appropriate, as you note. Thus, I don't see the particular argument as in any way unsound even if it might have been articulated better.
Mark, the physician-patient, attorney-client, and other specific privileges are -- at least in all jurisdictions I know -- based on statute. The people have decided that the public policy concerns warrant granting some special privilege. And even then, the privilege can be overcome by court order. If a judge orders me (attorney) to disclose a communication from my client, I have to do so. I'll object and appeal to the extent possible, but I do not have the right to put my own ego above the laws of the land. Moreover, if for some reason I was an arrogant ass and decided I would disobey the court order.. well I should suck it up and do the time in jail for contempt. That's the price to pay for a little ego masturbation.

Here, we have journalists trying to create a privilege without the consent of the public, and one so powerful that it immunizes the reporter from contempt rulings (making them the only American souls with such power!). Reporters should be following the laws that I, through my elected representatives, have enacted.
2.23.2007 6:36pm
Cecilius:
I'm not really sure I understand "Mark Field"'s argument. If someone leaks classified information to a reporter, it is a crime. It is not protected by the First Amendment. Keeping with the attorney-client privilege parallel, the Crime-Fraud exception prohibits attorneys and clients from using the privilege to shield other criminal actions. Aside from the inapposite analogy, the rhetoric quoted is certainly strange. As a registered voter, aren't I the watchdog of government? Aren't I, along with every other voter (who must testify if called), the ones with the power to replace rotten politicians? And if I am subpoenaed to testify on behalf of the government, because I am a witness to a crime, am I a "lapdog" of the government? Is my credibility the with jury automatically open to question simply because I responded to the government's subpoena and took the stand?
2.23.2007 6:42pm
Steve:
Mark, the physician-patient, attorney-client, and other specific privileges are -- at least in all jurisdictions I know -- based on statute.

What statute provides the basis for the federal attorney-client privilege?
2.23.2007 6:47pm
Harry Eagar (mail):
Yes, pretty appalling, and I'm afraid Steve is wrong that 'most' reporters would have no trouble reporting a car wreck they happened to see.

At least among the younger ones, there has grown up an ethos that to be antigovernment is noble. Lord knows, government has given reporters plenty of cause to feel that way. But . . .

The lapdog argument falls apart if viewed historically. However much I dislike the current 'all government action is automatically suspect' mindset, two generations ago, there really were press lapdogs (the sainted Arthur Krock was one, and Edgar Hoover had regiments of them), and subpoenas and injunctions for prior restraint had nothing to do with that.

Pat is also incorrect to say 'The "off the record" source for a reporter wants to influence actions without taking any responsibility for doing so. That's the bottom line, with all off the record conversations.'

Not so. Most of my off-the-record interviews are with people who are afraid of retaliation, often with good reason. Of course, I'm not a national security reporter.

I have no problem with off-the-record interviews or pledges of confidentiality to sources. I don't prefer them, but I've encountered lots of times when I had pretty good reason to suspect that something was wrong without any open sources to confirm it.

Omerta doesn't work because stool pigeons are afraid of subpoenas.
2.23.2007 6:48pm
holdfast (mail):
Yes, and exactly this same logic applies to whistleblowers, though there the constitutionally protected right is free speech (in the service of voters' right to know).

But what happens when the "whistleblower" is just a vindictive leaker - leaking because he personally does not like a policy or person? I might support the establishment of some kind of defense based on the merits - that the disclosure of the information served a necessary public purpose (ie clearly exposed government malfeasance), but to protect those that compromise national security out of pique - I don't think so.

It's all fun for the BDS sufferers to have at the US Government because they hate Bush - but sooner or later there will be a Democrat in the White House - do you really want conservative papers to be compromsing national security just 'cause they hate the president? Do you want to make it so that the US can never win any kind of war ever again?
2.23.2007 7:07pm
Just Dropping By (mail):
"Isn't this rhetoric about not being the 'lap dog' of the government or 'in bed with' the government pretty appalling?"

No, not at all. It is readily apparent to anyone who follows the increasing number of "mandatory reporting" statutes that the 4th and 5th Amendments are being turned into dead letters by the process of coercing millions of individuals into serving as government informants under threat of prosecution for failing to report evidence that the government would ordinarily have no right to absent a specific showing of probable cause. The situation with subpoenaing journalists merely gets more attention.
2.23.2007 7:07pm
wooga:

What statute provides the basis for the federal attorney-client privilege?
Steve, according to google, that privilege comes from holding of SCOTUS. (Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). So not a staute, but SCOTUS is a unique animal in that it is given discretion to actually 'make law', until Congress decides to take jurisdiction away from SCOTUS on that area of law.

Look, when journalists are willing to support changing the laws so:
1. Only those with a journalism 'license' be able publish articles; and
2. This journalism license required a doctorate level degree and passing of a high level competency exam; and
3. This journalism license could be suspended and the holder not allowed to publish anymore;
4. Journalists were subject to liability in suits from readers for 'journalistic malpractice';
Then I might be willing to entertain the notion that they perform some unique purpose for society that warrants granting them a communication privilege.
2.23.2007 7:13pm
wooga:
I left out of my prior post an aside about common law being old and this journo-privilege being totally out of character... but whatever.
2.23.2007 7:14pm
Mark Field (mail):

Mark, the physician-patient, attorney-client, and other specific privileges are -- at least in all jurisdictions I know -- based on statute.


In general I agree, and I'd prefer that any journalist's privilege be statutory as well. I'd expect any such statute to take account of your other concerns. In my view, the journalist would have the burden of meeting the standards (just as is the case with any other privilege).


If someone leaks classified information to a reporter, it is a crime.


Sure, but often the point is that the information should NOT have been classified, but was in order to hide information to which we voters were entitled.


As a registered voter, aren't I the watchdog of government? Aren't I, along with every other voter (who must testify if called), the ones with the power to replace rotten politicians?


Sure, but the press has, by tradition and by the nature of its business, played a special role in bringing to our attention the facts we need when it's in the interest of government officials to conceal those facts. If we value that role, as we should, we have to make sure that it can continue even against government harassment.


But what happens when the "whistleblower" is just a vindictive leaker - leaking because he personally does not like a policy or person? I might support the establishment of some kind of defense based on the merits - that the disclosure of the information served a necessary public purpose (ie clearly exposed government malfeasance), but to protect those that compromise national security out of pique - I don't think so.


I agree.


sooner or later there will be a Democrat in the White House


I'm fine with the press exposing Democratic malfeasance. Go for it.
2.23.2007 7:24pm
holdfast (mail):
I'm fine with the press exposing Democratic malfeasance. Go for it.

But the SWIFT program wasn't malfeasance - it wasn't illegal and was the implementation of a 9/11 Commission recomendation (I believe the Dems pledged to impement all of these recomendations within the first 100 hours. . . ). So you would be ok if the gov't called the reporters in question in front of a Grand Jury and compelled testimony? Of course, this would first require that the Bush DoJ grow a pair (faint hope), and I would hope that this would be a last resort after other methods of identifying the leakers had failed, but still, since the leak and subsequent publication didn't meet our test?
2.23.2007 7:36pm
e:

Publishing classified information is necessary for oversight of our government when our leaders lie at every turn, on issues ranging from surveillance to kidnapping to torture.

Precisely the attitude I cannot stand, unless you also think that anybody with access to classified material should be free to disclose it based on their own assessment, and then I still disagree. If the source wants to risk the potential consequences for a deep belief, let him face the courts which are not very sympathetic to security anyway. Defending a right to press secrecy in facilitating the exposure of national secrets is a bit much. If a reporter gets info that is classified, he can ask lots of related questions and push for oversight, but has no legal authority to decide which national secrets are damaging and not.
2.23.2007 7:53pm
Steve:
Steve, according to google, that privilege comes from holding of SCOTUS. (Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).

Surely you don't believe that the federal courts didn't respect the attorney-client privilege prior to 1981. My point was that it comes from common law; when courts interpret the scope of a common-law privilege that doesn't make it any less common law.

Your points about the significant differences between the attorney-client privilege and the proposed journalist-source privilege are well taken, of course. I was simply trying to point out that your argument about "only privileges with electoral legitimacy should be recognized" doesn't really hold water.
2.23.2007 7:56pm
Steve:
But the SWIFT program wasn't malfeasance - it wasn't illegal and was the implementation of a 9/11 Commission recomendation (I believe the Dems pledged to impement all of these recomendations within the first 100 hours. . . ).

I think the NYT Ombudsman ultimately took the position that, on balance, they probably made the wrong call by publishing the SWIFT story, and that the case for publication wasn't nearly as strong as some of the other high-profile recent cases that have likewise resulted in calls for hangings at the NYT. There was plenty of illegality in the SWIFT program, mind you, it just wasn't American illegality.
2.23.2007 7:58pm
wooga:
Steve, I just was providing a source which referenced the privilege as "old," so others could look up the history if they want. I was not implying that Upjohn was the _source_ of the privilege. And don't call me Shirley!
2.23.2007 8:01pm
JohnAnnArbor (www):
Lynne Stewart tried to claim that it was her right as a lawyer to "defend" her client by helping to transmit death threats to her client's followers. It makes no difference if the followers are Islamic radicals in Egypt or mafia hit men; what she was doing was a crime and had nothing to do with her role as a defense attorney. Yet self-styled "radical" attorneys made all sorts of noise about how future defense lawyers would be "constrained" in how they defend unpopular clients. Well, gee, so sorry that you can't help your clients kill more people.

Similarly, this reporter seems to think that the magic word "journalist" absolves him from ever having to testify when he might find it inconvenient, and never mind the situation or the consequences. Well, gee, sorry you have to live by the same rules we citizens do.
2.23.2007 8:09pm
CatCube:

the facts we need when it's in the interest of government officials to conceal those facts

Except for the vast majority of "concealed facts" it is in everybody's interest (except for our enemies) to keep them secret. I think a substantial portion of classified information reported in the media (if not a majority) should properly be kept secret.

The only utility for publishing a lot of classified material is that a reporter gets to see his byline and a lot of members of the public can say, "Huh. That's cool." Or maybe rag on their political opponents.

Nowadays, blabbering everything is an end in an of itself to sell papers and ad space. I think that the push by media companies for a "journalist priviledge" hasn't got a thing to do with the good of the public and has everything to do with the private good of their own bottom line. Reporters can have the same damn rights as everyone else.
2.23.2007 8:20pm
Mark Field (mail):

Except for the vast majority of "concealed facts" it is in everybody's interest (except for our enemies) to keep them secret.


I don't share this view. IMO, the vast majority of classified documents have no business ever being classified. Government officials abuse this power regularly (geez, I sound like a libertarian here). The ability to classify should be strictly limited; a republic must, by definition, be as open as possible.


I'm fine with the press exposing Democratic malfeasance. Go for it.

But the SWIFT program wasn't malfeasance - it wasn't illegal and was the implementation of a 9/11 Commission recomendation (I believe the Dems pledged to impement all of these recomendations within the first 100 hours. . . ).


I'm not quite sure what the transition is here or what malfeasance in a Dem administration might have to do with SWIFT. In any case, the SWIFT disclosure was borderline in my view. I don't see any real reason to think that it needed to be classified, nor do I think there was any real harm in publicizing it. That said, I don't think there was much benefit to publicizing it either.
2.23.2007 8:31pm
Robert Lyman (mail):
In large measure, the "journalist's privilege" isn't about protecting the press (or at least it shouldn't be), but about protecting their sources. The "right" at issue isn't the truly right to be a reporter, but the right to be a whistleblower (it's for that reason that I find Wolf's argument from the previous post utterly preposterous). Of course, looking at it this way destroys the consitutional argument.

It seems to me there's a difference between the Beltway leaker who hates the President, or his boss, or the fools at the agency down the street, and the young beat cop who happens to see the chief and the mayor taking a bribe. One deserves protection, the other doesn't. I can't say how you'd codify that distinction, or if it can even be made in most cases, but it helps, I think, to clarify what exactly we're talking about here.
2.23.2007 8:32pm
Robert Lyman (mail):
I don't see any real reason to think that [the SWIFT program] needed to be classified, nor do I think there was any real harm in publicizing it.

Well, Belgian courts have ordered the banks to stop cooperating with us. I'd say that's a good reason to classify, and real harm from publication.

I probably agree on overclassification, but I don't see how newspapers or low-level staffers with an axe to grind earn the right to substitute their judgment for the official system. I think SCOTUS is wrong an awful lot, but if I were a judge, I wouldn't have the right to just disregard it because I didn't like it.

If journalists are going to huff and puff about losing protection under the law, they might ponder if their private disregard for classification laws are part of the problem. Rule of law for me, but not for thee?
2.23.2007 8:38pm
Mark Field (mail):

It seems to me there's a difference between the Beltway leaker who hates the President, or his boss, or the fools at the agency down the street, and the young beat cop who happens to see the chief and the mayor taking a bribe.


I agree with this, so I think your comments in your second post don't really apply to what I have in mind.


Well, Belgian courts have ordered the banks to stop cooperating with us. I'd say that's a good reason to classify, and real harm from publication.


The fact that another country decided to enforce its own law isn't something I would ordinarily classify as "harm".
2.23.2007 9:10pm
Robert Lyman (mail):
The fact that another country decided to enforce its own law isn't something I would ordinarily classify as "harm".

Is loss of a program proven to catch terrorist "harm"?

I presume--at least, I hope--the CIA and related agencies are doing lots of things which are illegal in other countries. Does it really make sense to suggest that there's no harm in revealing all those activities, merely because they violate foreign law?
2.23.2007 9:20pm
Paddy O. (mail):
"Sure, but the press has, by tradition and by the nature of its business, played a special role in bringing to our attention the facts we need when it's in the interest of government officials to conceal those facts."

The Church has, by tradition and by the nature of its business, played a special role in bringing to our attention issues of morality and conscience when it is in the interest of the country to address those issues.

But, I don't see that being an effective argument for their dictating policy.

Tradition and nature has absolutely no standing with me. If they want privileges lets make an amendment. Otherwise they are just folks like you and me, who happen to take a bit more risk in finding out information. They should be treated exactly like I would if I was trying to hide information, because goodness knows <i>I'd</i> have a good reason to lie or hide info too.
2.23.2007 10:25pm
MnZ (mail):

Look, when journalists are willing to support changing the laws so:
1. Only those with a journalism 'license' be able publish articles; and
2. This journalism license required a doctorate level degree and passing of a high level competency exam; and
3. This journalism license could be suspended and the holder not allowed to publish anymore;
4. Journalists were subject to liability in suits from readers for 'journalistic malpractice';
Then I might be willing to entertain the notion that they perform some unique purpose for society that warrants granting them a communication privilege.


How true!

Journalists are like petulant teenagers who demand that their parents give them the keys to the liquor cabinet and the sports car. The privileges that they seek are neither needed nor beneficial.
2.23.2007 11:33pm
josh:
"If someone leaks classified information to a reporter, it is a crime. It is not protected by the First Amendment." That's the issue isn;t it? As we've seen from the Plame case, an administration, particularly this one, can deem anything classified for political purposes, only to de-classify it when it's in its interest, or keep it classified if it can threaten jounralists with jail.

I'd really like to hear EV address the James Risen/Dana Priest examples. Certainly the Powerline Boyz think these two should be locked up, along with their publishers and, perhaps, the leakers who gave them the stories. To say that portions of a National Intelligence Estimate can be de-classified for political purposes, but that the reporting of the fact that we wiretap without warrants in contravention of federal law is a cime seems awfully dicey to me. That may not make the press "lap dogs," but it certainly has a chilling effect.

And I think the Stewart analogy is a red herring. To compare someone convicted of aiding and abetting terrorists, with another who reports leaked facts seems a bit of a stretch.

"Nor does a citizen become a "lap-dog" of the government, or get "in bed with" the government, because he does his duty (whether voluntarily or involuntarily), and helps the jury learn the truth about what happened. It seems to me arrogant, contemptuous, and contemptible for media representatives to suggest otherwise -- to suggest that there's something base or some sort of sell-out in a person's responding to a subpoena."

"Arrogant, contemptuous and contemptible?" A little shrill, no? Reasonable minds can differ, but there are those of us who take the notion of a free and unfettered press as sacrosanct as we do the right to counsel and a fair trial. Obviously, you disagree, but such name-calling (or argument-bashing) doesn't seem to do much for your case.

It's unfortunate. This is one of the best blogs going, but the contempt for the press or (now, apparently) anyone who thinks it should be afforded the protections of, say, an attoney, is a little disheartening. It's a step away from the calm, reasoned approach we often see in posts on other subjects here, or on other
blogs by "libertarian/moderate" law professors.
2.24.2007 1:16am
josh:
I meant "It's a step away from the calm, reasoned approach we often see in posts on other subjects here, AND FAR TOO MUCH LIKE other
blogs by "libertarian/moderate" law professors."
2.24.2007 1:38am
Eugene Volokh (www):
Josh: If I started calling people "lap-dogs of the government" if they did their legal duty that they share with millions of their fellow citizens, or "getting in bed with the government" for it, what would you call that? Arrogant, maybe? Contemptuous? Maybe even contemptible?

Of course reasonable minds can differ about the proper scope of the journalist's privilege. ("I should stress that there are sensible arguments for a limited journalist's privilege, especially a common-law privilege (like the psychotherapist-patient or civil attorney-client privilege) rather than a constitutional one; and the desire to encourage confidential statements to reporters, which can (sometimes) help enlighten the public and (sometimes) even enlighten law enforcement about crimes and scandals that law enforcement might otherwise not have learned about, and might effectively investigate even without subpoeaning the reporter. I speak here only about a particular argument, which strikes me as unsound and as high-handed on the part of the pro-media-rights forces.")

But when representatives to the press start sneering at how, if they had to do exactly what other citizens have to do, they'd be "lap-dogs" who "get in bed with the government," that is a position that strikes me as both unreasonable and richly deserving of precisely the adjectives I used.
2.24.2007 2:16am
davod (mail):
Mark:

The whistleblower laws are designed to protect people who go through government channels to report problems. Leaks to journalists do not apply.

The argument that most information is overclassified is not relevent. Who decides what, or why, information is classified. I would suggest that some leakers have no real idea what the basis for the classification is.
2.24.2007 5:30am
Robert Lyman (mail):
"If someone leaks classified information to a reporter, it is a crime. It is not protected by the First Amendment." That's the issue isn;t it?

No, actually, it's not. There is no "leaker's privilege" at all under discussion; the leaking is unambiguously a crime. The question is whether reporters can hide the criminal from the police.

Certainly the Powerline Boyz think these two should be locked up, along with their publishers and, perhaps, the leakers who gave them the stories

For my part, I'd be satisfied to see the leakers locked up and the reporters left free. If you don't want to keep secrets, don't take a job with a security classification. If you believe so strongly that something is deeply morally and legally wrong, sign your name to it instead of hiding. That is the honorable route.

But of course, that approach would require the reporters to testify, which is precisely the question here.
2.24.2007 7:28am
godfodder (mail):
Here's something I don't think has been covered, and falls into the category of "unintended consequences." With privilege comes responsibility. In the future, might not journalists be sued for "breach of confidence," especially when their source is harmed by being exposured?

Something else for journalists to worry about, I guess. Right now they don't have to fear this.
2.24.2007 8:31am
Steve:
There is no "leaker's privilege" at all under discussion; the leaking is unambiguously a crime.

What "unambiguous" crime is it to "leak classified information to a reporter"? Hint: You won't find it anywhere in the U.S. Code.
2.24.2007 9:25am
Eugene Volokh (www):
Godfodder: Even in the absence of a privilege, if journalists promise confidentiality and then break that promise, they can be sued. See Cohen v. Cowles Media (1991).
2.24.2007 9:26am
Jesse Wendel:
Taking advantage of that we're talking privilege, would someone please speak about religious privilege, how deep it goes, and when the government can compel it to be violated?
-- The privilege of the confessional?
-- Of counseling someone?
-- Of promising to hear something in total confidence, when the act of creating a safe space for someone to communicate in openly and completely, is central to one's religious practice?
-- If the religion is an emerging religion, or perhaps not even a recognized religion but simply the consistent and deeply-held religious practices of a particular person?
Is all or some of this protected by statute? By the Constitution? Not protected?

How does this square with mandatory reporting laws dealing with child abuse, which are routinely ignored by Priests in the Catholic Confessional. What is their authority and how does that fit with other established religions, emerging religions, and individual people and their religious practices? (The same question I asked above, just formed slightly differently.)

Does anyone have any good source material to which they could post links please?

Thanks in advance to any replies.
2.24.2007 9:36am
Mark Field (mail):

The Church has, by tradition and by the nature of its business, played a special role in bringing to our attention issues of morality and conscience when it is in the interest of the country to address those issues.

But, I don't see that being an effective argument for their dictating policy.


Putting aside whether I agree or not with your description of "the Church", there is (at least in CA) a clergyman-penitent privilege.

Nobody says the press should "dictate" policy. It is, however, part of their job to inform policy.


The whistleblower laws are designed to protect people who go through government channels to report problems. Leaks to journalists do not apply.


I agree, but it's not relevant to my point. My point is that governments hide information that we, as voters, have a right to know. There needs to be a method of protecting disclosure when such information is made public. As for terminology, I don't think it's much of stretch to refer to the government employees who do this as "whistleblowers".


The argument that most information is overclassified is not relevent. Who decides what, or why, information is classified. I would suggest that some leakers have no real idea what the basis for the classification is.


I'm sure you're right about some leakers. That's why the privilege I envision would be fairly narrow and the burden of meeting it on the party asserting it (a burden common to all privileges).

As for the relevance of overclassification, I think that goes to the heart of the problem. This is a republic. We, the voters, are the ones ultimately in charge. The government is not. Part of our job is to evaluate the government. We can't do that if our agent conceals from us information we ought to have. Overclassification is the principal means used to hide malfeasance.
2.24.2007 10:58am
Justin (mail):
While I wouldn't go as far as rothmat, though I don't disagree with him, publishing classified information is necessary when the determination of what is classified or not depends not on the nation's interests but on the Republicans' political interests. Thus Valerie Plame, who was covertly working on Iranian WMD issues = not classified, whereas torture = classified.
2.24.2007 11:08am
Robert Lyman (mail):
Steve, it took me all of 30 seconds to find this in the US Code:

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information...Shall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. § 798

I must be missing the ambiguity somehow.

On the subject of overclassification, I don't disagree that the classification system is sometimes abused, but I'm amazed at the cavalier attitude many people seem to adopt. Apparently the law, and the process by which that law is adopted, is less important than political vendettas. Apparently Justin and his fellow travelers in the media know better what should and should not be secret than the people who are lawfully charged with making that determination. That might be the case, but it would be rather surprising, to say the least. It shows a contempt for the rule of law which would be (quite rightly) condemned if, instead of a leaker who dislikes Bush, it were a cop who dislikes Mapp v. Ohio.
2.24.2007 11:57am
Robert Lyman (mail):
Nobody says the press should "dictate" policy.

By publishing classified information, the press is dictating that it shall not be secret any longer.

If our government is, as you say, to be a republic rather than an aristocracy, then it is necessary that we elect the people who make these decisions, rather than letting the Sutzberger family anoint them.
2.24.2007 12:18pm
Justin (mail):
Robert Lyman,

Wouldn't the better analogy be an administration that has shown complete contempt for the rule of law, to the point where the Vice President has made the famous argument of another former Vice President that what the executive does is by definition not illegal? And, you know, where the results have been the death and torture of many people, including many, docuented, innocent people?

Oh...wait...nevermind...

Question withdrawn, your honor.
2.24.2007 12:19pm
Mark Field (mail):

By publishing classified information, the press is dictating that it shall not be secret any longer.


Sure, but that doesn't dictate any policy, it just assures that policy is decided with full understanding of the facts.


If our government is, as you say, to be a republic rather than an aristocracy, then it is necessary that we elect the people who make these decisions, rather than letting the Sutzberger family anoint them.


It's all a balancing act. We do need to grant power to government. At the same time, we have to make sure that power doesn't get abused. One of the most valuable "checks" to abuse is the exposure the press gives. A limited press shield law helps preserve that.
2.24.2007 12:33pm
Robert Lyman (mail):
Justin,

I happen to think that for the system to function, the rules must be the same regardless of who is in power.

Many people do not share your view of this administration. There is no reason to think that your view, or that of some random reporter, or that of a disgruntled leaker, is so obviously, inherently correct that it justifies breaking the law, made by those duly elected to make it.

Nothing could be more destructive to the rule of law than the belief that the law doesn't apply to people who are doing the "right" thing. That is, I believe, the behavior you are attributing to Bush; why imitate it?
2.24.2007 12:37pm
Robert Lyman (mail):
Sure, but that doesn't dictate any policy

It certainly does dictate classification policy.

I guess the tricky question is: who decides what should be secret? Reporters or politicians and security professionals? Over the long run, I trust the latter two to do a better job than journalists, but I understand if others differ.
2.24.2007 12:41pm
DiverDan (mail):
I don't pretend to be a First Amendment expert, but it appears that if and to the extent that any "reporter's privilege" is justified by public policy reasons, it certainly does not apply to the situation where the reporter knows (or ought to know, meaning we should be able to presume that all persons holding themselves out as qualified journalists are familiar with the law prohibiting disclosure of classified information) that the mere act of disclosure is itself a criminal offense. If a reporter for the New York Times were standing in line at the bank when armed robbers entered and robbed the bank, it would be ludicrous for that reporter to claim any privilege in refusing to help identify the robbers to the police. Why should it be any different when the reporter knows that the person who has just disclosed to him/her that person X is an undercover CIA operative has committed a federal offense by the act of disclosure? The reporter in that case is a material witness to a crime, and his or her refusal to disclose the name of the criminal is itself a criminal obstruction of justice. As to the journalist's civil liability to the discloser for breaching a promise of confidentiality, if the journalist is foolish enough to make an unconditional promise, with no exception for disclosures that may be required by legal process, then the civil liability of the journalist does not bother me at all. I've written many a civil settlement agreement with a confidentiality clause, and every single one excuses performance when disclosure is required by law. If the confidential informant won't speak if the journalist's promise of confidentiality is conditioned so that it does not apply if disclosure is required as a result of legal process, then the information is probably best kept secret.
2.24.2007 12:44pm
Taltos:

This is a republic. We, the voters, are the ones ultimately in charge. The government is not.


Actually, being a republic means that we elect other people to make our decisions for us and with rare exception we're stuck with them until the next election. Once the voting is done they get the job and you have to live with it. Actively seeking to undermine the government because you dislike what they are doing is seditious behavior.
2.24.2007 12:52pm
Michelle Dulak Thomson (mail):
Eugene,

Did you or anyone else at VC write about the Watada case? I know I read an account at some lawblog, but a search here doesn't come up with anything. Briefly, two freelance journalists were (as of late December) fighting subpoenas from the US Army to testify in a court-martial of 1st Lt. Ehren Watada, who refused an order to deploy to Iraq on the grounds that, in his view, the war was illegal. One journalist had interviewed Watada; the other had covered an antiwar rally at which Watada had spoken. The subpoenas were issued in order to get sworn statements from both writers that their accounts of Watada's own words were correct, no more.

So, basically, these two writers publicized what Watada wanted to say; and Watada himself obviously wanted his views known. (You do not talk to journalists or speak at rallies otherwise, yes?) And all the Army wanted was confirmation that Watada had said what they had reported he'd said.

But one of the two, Sarah Olson, put her case like this:

"Testifying against my source would turn the press into an investigative tool of the government and chill dissenting voices in the United States," Olson said in a statement.

(That's from an AP account from late December that I found at Editor & Publisher.)

Huh? He said it, wanting lots of people to read it; she wrote it, ditto; all the Gov't wants is assurance that he actually said what she says he did; and now she's "an investigative tool of the government"? Look, if you don't want people prosecuted for desertion, one possible option is, you know, not to make it your professional business to tell everyone you possibly can that someone is a deserter. Some ethical quandries resolve themselves ever so easily.

I don't know how this one shook out, btw.
2.24.2007 1:26pm
John Burgess (mail) (www):
Maybe I'm dumb, but I've spent 25 years working with documents classified by various USG agencies, from DOD to CIA. The vast, vast majority of what I've read has been properly classified.

There were always a few things that were over-classified. To my eye, those were the result of a little too much self-importance being felt by the classifier, not attempts to cover malfeasance or misbehavior. And sometimes, classification was not based on national security, but on other laws, such as the protection of personnel or medical or legal matters pertaining to specific employees.

Then there're situations in which classification serves a 'meta-purpose'. An example might be that of an American jailed abroad. That person has a pretty expansive right to determine who (if anyone) is permitted to know of his/her plight. That person is required to sign a privacy waiver agreement before the USG (in the instrumentality of State Dept.'s Consular Services) can release any information about the person, to family, friends, congress, or the media.

Still, State must be able to talk about this person and his case within the State Dept. The information must be protected against improper disclosure for both moral and legal reasons, but it must also be in some way available to those who need the information to act upon it. That way is 'classification'.

The information that Joe Blow got busted in Country A for committing Crime X is not usually a matter of national security. The way State responds to Joe's plight might be embarrassing to State or one of its employees, though typically not. State's response might be of considerable interest to the general American public for real or simply prurient reasons; it might even be of interest to certain Congressional committees. But leaking that information to the media isn't the right way to deal with it.

Over the past 25 years, the USG has made several efforts to control the amount of information that is classified. It has consistently become more and more difficult to classify information. The people/positions permitted to classify has been narrowed. Each act of classification must cite explicitly under which Executive Order the material is being classified. Documents which contain both classified and unclassified information must be tagged, at the paragraph level, to indicate which is which.

Frankly, I just haven't see stuffy being classified to cover political asses. Maybe things work differently in the White House, but I haven't seen it. Consequently, I do tend to see a lot of paranoia out there on the part of people ill-disposed to whatever administration is in power.
2.24.2007 1:33pm
Mark Field (mail):

if and to the extent that any "reporter's privilege" is justified by public policy reasons, it certainly does not apply to the situation where the reporter knows ... that the mere act of disclosure is itself a criminal offense.


It's a little more complicated than this because, as others have pointed out, it's a crime to reveal classified information. Thus, if something is wrongly classified, revealing the information may be both beneficial to the public and criminal. That's the hard issue. The easy ones are like the Wolf case where there's no real secret at issue and any crime is one which nobody disputes.


Actually, being a republic means that we elect other people to make our decisions for us and with rare exception we're stuck with them until the next election. Once the voting is done they get the job and you have to live with it. Actively seeking to undermine the government because you dislike what they are doing is seditious behavior.


That's a pretty Hamiltonian view of the government. I'll stick to the Madisonian one.
2.24.2007 1:54pm
Federal Dog:
""We are supposed to be the watchdog of our government, not its lap dog,"


You're not supposed to be dogs at all, man. You're supposed to be journalists -- you know, reporting facts, taping events, etc.

I'm supposed to be a dog.
2.24.2007 1:56pm
TDPerkins (mail):


Actually, being a republic means that we elect other people to make our decisions for us and with rare exception we're stuck with them until the next election. Once the voting is done they get the job and you have to live with it. Actively seeking to undermine the government because you dislike what they are doing is seditious behavior.

That's a pretty Hamiltonian view of the government. I'll stick to the Madisonian one.


I'm unaware of Hamilton disparaging the founder's assumed answer to such situations, which is that a fully informed jury would protect the rights of minorities.

Yours, TDP, ml, msl, &pfpp
2.24.2007 2:01pm
BruceM (mail) (www):
There are lots of privileges whereby one can refuse to testify, all based on public policy considerations which are deemed to outweigh the importance of the truth-seeking function of the judicial system. For example, society has determined that it is more important for people to be able to confer with priests/rabbis openly and honestly without fear that the priests/rabbis will be forced to testify against them. Same with husband/wife, attorney/client, and various other such privileges. I firmly believe such a privilege for journalists and their sources is equally if not more justified than many of the pre-existing privileges like husband and wife and, doctor/patient, and (certainly) priest/penitent. The very notion of a free press being able to act as a government watchdog depends on it. And yes, that goes for every blogger out there, too. No journalist should have to spend a minute in jail to protect a source.
2.24.2007 2:02pm
Opus:
"Presumably, if a reporter witnessed a car accident on the way to work, they'd be as happy to cooperate with the authorities as anyone else."

Perhaps not, for as Michael Kinsley wrote in Slate:


"A very distinguished New York Times writer once told me that if the Times ballet critic, heading home after assessing the day's offerings of pliés and glissades, happens to witness a murder on her way to the Times Square subway, she has a First Amendment right and obligation to refuse to testify about what she saw."
2.24.2007 2:04pm
JohnAnnArbor (www):
Like Mr. Burgess, I dealt with classified documents (although for only 3 years). They were mostly technical, and what struck me was how careful most (not all) people were about marking only the "right" part as classified. There'd be a slide about a particular radar, and there'd be 10 bullet points, and only one or two (say, actual effective range) would be marked (S) for SECRET, with the rest marked (U) for UNCLASSIFIED.

In cases where you might want to know WHY something is classified, you're supposed to ask the person who wrote the document, not give it to the New York Times.
2.24.2007 2:15pm
Mark Field (mail):

I'm unaware of Hamilton disparaging the founder's assumed answer to such situations, which is that a fully informed jury would protect the rights of minorities.


I'm not exactly sure what you mean here, but it looks like you're assuming jury nullification. I'm not sure Hamilton agreed with that, but it's also a dubious source of protection today.
2.24.2007 2:25pm
Elliot123 (mail):
Some folks have written about the "chilling effect." What does that mean? Forget the metaphor, and just tell us what the problem is. Does it mean reporters will be less willing to publicize classified information? Does it mean leakers will be less willing to illegally reveal classified information? Is classified information something that should be publicized? If so, who calls for an end to classification? Then we wouldn't need the jurnalists and I presume the public interest would be served.

Most of the classified information at the federal level I have seen published recently has little to do with the public's right to know; it has to do with furthering the political agenda of the reporter. How is furthering the political agenda of the reporter in the public interest?

Some others have written that the reporters job would be harder to do if he didn't have a shield. OK. So what? Is it our job to make the reporter's job easy? If he learns something from a source, maybe he can do some real work and verify and report it from other sources? (Reporters routinely try to make everyone else's job harder. Maybe we could return the favor?)

I'm reminded of the silly practice TV folks have of interviewing each other. I think they might hold themselves in a bit more esteem then the general public does, and I suspect they think they should have more privileges than the general public.
2.24.2007 2:57pm
Michelle Dulak Thomson (mail):
Bill Woods,

Thanks very much for the link. So the subpoenas have been dropped because those charges have been dropped, though evidently Lt. Watada is still charged with something, presumably with "missing troop movements," IOW, desertion.

I still don't understand the position of the journalists in that case. Again, if they wanted the information known, and the defendant obviously wanted the information known, is it really onerous for them come before a court and say, "Yes, what I wrote in my published interview of Watada is a substantively correct account of what he said to me on such-and-such date"? In other words, "No, I didn't falsify his words, nor ginger them up in accord with my own fancy"? I mean, I'm a (sometime) journalist, and if there were any question whether my report of something were accurate, I'd want to defend myself against the implied accusation. Which is quite beside the point, because if subpoenaed I'd be there testifying anyway.

There are difficult cases about the protection of sources, but the Watada one isn't, and the Josh Wolf one isn't either. Verifying that statements always and originally intended for publication, and subsequently published, are accurate (Watada) and obtaining evidence known to exist about a crime that took place in public and didn't involve any journalist/source communication whatever (Wolf) aren't judgment calls.

I am wondering just how far folks expect the other time-honored privileges (attorney-client, doctor-patient, priest-penitent) to extend, anyway. My own understanding is that they cover only professionally-divulged information, but then IANAL. Does anyone seriously contend that a priest who sees one of his congregation, a lawyer who sees one of his clients, or a doctor who sees one of his patients torching a car is under some sort of ethical obligation not to mention it to the police, even if they find out that he likely witnessed the crime and ask him?

The Josh Wolf case is different only insofar as he was filming "as a journalist"; but he was filming something taking place in public that anyone might have seen. I don't see how his wanting to make commercial use of his video should place him in a different position from Joe Schmo with no media contacts who stumbled onto the protest scene by accident and taped it.
2.24.2007 2:58pm
NickM (mail) (www):
Not all secret information is national security.

Consider the following actual cases:

A grand jury is investigating the distribution of certain controlled substances. During the investigation, grand jury testimony involving a very famous private citizen (and implicating him in criminal activity) is leaked to a reporter by an attorney for a target of the investigation. The reporter's press organization publishes the testimony, harming the private citizen's reputation and biasing the jury pool against him if he is charged.

A city council is meeting in closed session with their attorneys to discuss how much to authorize settling a lawsuit for. They agree on and approve a maximum authority. The same night, someone who was privy to the meeting leaks to a reporter the settlement authority. The reporter's press organization publishes the number and that it was voted on. Opposing counsel immediately offers to accept judgment in that maximum amount, thereby binding the city (and its taxpayers).

Do the people who want a reporter's privilege still want it in these cases?

Nick
2.24.2007 3:12pm
Robert Lyman (mail):
IAAL, as are many others hanging out here. The privileges that currently exist generally cover:

1)Communications (not acts)
2)Made in confidence
3)for the purposes of obtaining [legal/medical/confessional] services
4) which have not been waived by the holder.

Note that waiver can occur by explicitly permitting the person to testify, or by acts such as filing a personal injury lawsuit (your doctor can testify) or sharing the information with unnecessary parties (which shows it wasn't really confidential)

For the attorney-client privilege, there is the additional requirement that the communication not be made for the purpose of furthering a crime or fraud.

So analogous journalist-leaker privilege would cover:

1) Communications (not videotapes of public events)
2) Made in confidence (anonymously, not public speeches or interviews meant for publication with the subject's name attached), yet
3) for the purpose of publication (not just you chatting with a friend who happens to be a reporter)
4) Which are not themselves criminal (and revealing classified information is a criminal act, whatever Steve thinks), and
5) which have not been waived by the holder.

I could live with such a privilege, but it would cover far, far less than reporters want covered. It does protect my hypothetical cop who sees the mayor take a bribe, though.

BTW, Mark, is it not more "republican" to take evidence of abuse or overclassification to the opposition party in Congress rather than the press? They are our elected representatives, after all. That way the press isn't making these sorts of judgment calls and you can have more confidence genuine malfeasance will be revealed while genuinely valuable information will be guarded.
2.24.2007 3:19pm
Mark Field (mail):

Do the people who want a reporter's privilege still want it in these cases?


Your first example is the BALCO case. I don't think any privilege is justified there. Why? Because the reporters were not reporting information the government was attempting to conceal, but information which the government was itself investigating. IOW, the government in that case was functioning exactly as we want it to function -- investigating potential crimes while preserving grand jury testimony to protect those who may be not be guilty.

Of course, the actual identity of the leaker, and the circumstances of the leaks in that case, make any privilege even harder to justify.

I'm not sure I understand the second case. I'm doubtful that there was an enforceable offer so I don't see how the acceptance would bind the city. In general, though, I think settlement amounts paid by public entities should be public information.
2.24.2007 3:23pm
Mark Field (mail):

Mark, is it not more "republican" to take evidence of abuse or overclassification to the opposition party in Congress rather than the press? They are our elected representatives, after all. That way the press isn't making these sorts of judgment calls and you can have more confidence genuine malfeasance will be revealed while genuinely valuable information will be guarded.


You mean the general problem of overclassification or specific instances of it?

Overclassification as a general problem is definitely one Congress should address. OTOH, the problem is not easy to solve by legislation. There has to be discretion in the executive to classify some secrets, but that discretion can be abused in particular cases. It's hard for Congress to function as a watchdog over particular cases, but I'd have no problem if that happened. And note, by the way, that the Congressional privileges in Art. I, Sec. 6 might well hamper any investigation into the source of the leak.

At the same time, the press functions very well in individual cases. There have been few, if any, truly important secrets revealed. For the most part, the press has done a good job evaluating what should and should not be disclosed.

Which one is more "republican" is somewhat arbitrary. My general view privileges the public over the government because they're the ultimate source of power.
2.24.2007 3:36pm
Robert Lyman (mail):
I meant for specific cases. I'm suggesting that leaker, instead of callig a reporter, should call a lawmaker. If Bush has decided to classify evidence that he personally flies down to Gitmo and beats people, then presumably Reid and Pelosi would be willing to make such information public and sign their names to it. They can then be held accountable by the voters if they make the wrong call.

If the wiretaping or SWIFT programs, both of which I regard as important secrets revealed by the press, were reviewed by top Democrats (and the lawyers on their staffs) then I fail to see any reason they need to be published. Not that I trust the Democrats, per se, but I do trust them to attack Bush when possible. If they are willing to exercise some forebearance, then I'm pretty comfortable that overclassification isn't a problem in those specific cases.

I personally would favor total immunity for leakers who go to Congress; I thought that the law included something like that but I don't have time to look for it.

I called it more "republican" because the defining feature of a republic is the election of representatives to make decisions rather than direct rule. Publication to the public, rather than those representatives, seems closer to direct rule than republicanism to me.
2.24.2007 3:52pm
NickM (mail) (www):
Mark Field - my second example was something which happened involving the city of Los Angeles.

The City Council met in closed session to discuss with counsel settlement authority for their attorneys in a civil rights case against the city. They gave the attorneys IIRC $2.5 million authority. Within a couple hours, someone (the only people present were mayor/council and staff, city clerk staff, and city attorneys and staff) leaked that figure to a newspaper, which published it the next morning. That day, plaintiff's counsel made a Cal. Civ. Proc. Code § 998 offer to accept judgment of $2.5 million. The city's attorneys were then bound to accept it. IMO that leak of attorney-client discussions is prejudicial to the client, because their counsel can no longer reasonably attempt to negotiate a lower settlement figure.

Nick
2.24.2007 4:35pm
trotsky (mail):
Holdfast wrote:

It's all fun for the BDS sufferers to have at the US Government because they hate Bush - but sooner or later there will be a Democrat in the White House - do you really want conservative papers to be compromsing national security just 'cause they hate the president?

They did under Clinton. They'll do it under the next Democrat. And no conservative will think it's a problem when they do. On the contrary, they'll celebrate the free flow of information about the crooks in the White House.
2.24.2007 5:06pm
Robert Lyman (mail):
They did under Clinton.

Really? What national-security related leaks are you referring to?
2.24.2007 5:08pm
TDPerkins (mail):
I'm not exactly sure what you mean here, but it looks like you're assuming jury nullification. I'm not sure Hamilton agreed with that, but it's also a dubious source of protection today.


In the absence of any evidence he disagreed with it, then I think the standard model of due process--that juries judge the law, it's application to the facts, and the facts of the case, and that they hear the defense the defendant wants them to hear--is the model he signed onto.

As for it's being a dubious protection today, that has more to do with it's disparagement than it's intended utility.

In reference to this current case, why shouldn't Wolf be charged with obstruction at this point, and what verdict would you imagine a jury would find?

Yours, TDP, ml, msl, &pfpp
2.24.2007 5:17pm
Mark Field (mail):

The City Council met in closed session to discuss with counsel settlement authority for their attorneys in a civil rights case against the city. They gave the attorneys IIRC $2.5 million authority. Within a couple hours, someone (the only people present were mayor/council and staff, city clerk staff, and city attorneys and staff) leaked that figure to a newspaper, which published it the next morning. That day, plaintiff's counsel made a Cal. Civ. Proc. Code § 998 offer to accept judgment of $2.5 million. The city's attorneys were then bound to accept it. IMO that leak of attorney-client discussions is prejudicial to the client, because their counsel can no longer reasonably attempt to negotiate a lower settlement figure.


Ah, I see the problem. Given those circumstances, I'd oppose any privilege claim. CA has a quasi-privilege for news reporters, but in my view it's overinclusive.


If the wiretaping or SWIFT programs, both of which I regard as important secrets revealed by the press, were reviewed by top Democrats (and the lawyers on their staffs) then I fail to see any reason they need to be published.


It still remains unclear to me the extent to which the details of the wiretapping were disclosed to the various Dems. IMO, those who did learn the information violated their public trust by failing to reveal it publicly. I don't know the circumstances of the SWIFT program, so I can't comment on that.


I personally would favor total immunity for leakers who go to Congress; I thought that the law included something like that but I don't have time to look for it.


If there were such a law (or Constitutional provision), then I'd favor disclosure to Congress in lieu of the press also. Sad as it is to say, I'm not sure that there would be fewer politically inspired leaks in that case. The press has tended to behave far more responsibly than individual members of Congress.


I called it more "republican" because the defining feature of a republic is the election of representatives to make decisions rather than direct rule. Publication to the public, rather than those representatives, seems closer to direct rule than republicanism to me.


I agree with this characterization. The nuance I'd add is that republican governments may rely on representation, but they still leave sovereignty in the people. In can be a judgment call to decide which feature should predominate in a given case.
2.24.2007 5:24pm
Taltos:
If divulging classified material without authorization is a crime, wouldn't that make the journalist receiving the information both a party and an eyewitness to the criminal act?
2.24.2007 5:25pm
Mark Field (mail):
I posted before I finished my last thought.

Representation is means to effectuate popular sovereignty. When push comes to shove, therefore, I favor the latter.
2.24.2007 5:27pm
Mark Field (mail):

In the absence of any evidence he disagreed with it, then I think the standard model of due process--that juries judge the law, it's application to the facts, and the facts of the case, and that they hear the defense the defendant wants them to hear--is the model he signed onto.


My somewhat vague recollection is that Hamilton favored the judge/law, jury/facts distinction which was then a matter of some dispute. I'd have to look to see if I can find a reference for that.


As for it's being a dubious protection today, that has more to do with it's disparagement than it's intended utility.


Perhaps so, but the fact remains that a leaker can't rely on jury nullification to provide him/her a defense. In the absence of that, we need another solution.

I'm not sure letting the jury decide would be the best system anyway. All the policy reasons against having the press do so seem to apply with greater force to a jury. Remember, too, that the jury would almost always be in DC, a fact which might not please modern day Republicans.


In reference to this current case, why shouldn't Wolf be charged with obstruction at this point, and what verdict would you imagine a jury would find?


I'd have to look up the obstruction statutes again (I haven't done so in about 10 years) before I could answer the first question. If the case did get to a jury, I doubt they'd have much sympathy for him. Depends on the location, perhaps, and whether he was able to sell a "political motivation" defense or something similar.
2.24.2007 5:36pm
MnZ (mail):
I think the press's views on this matter are driven by arrogance and selfishness rather than any respect for the First Amendment. Basically, the press wants the privilege to act in any way they choose without any accountability. Sometimes a reporter will cooperate with the government...sometimes he won't. It is the reporter's Constitutional right to choose. Any attempt to enforce a consistent standard is viewed as unconstitutional.

History has demonstrated that the press is capabable of a most amazing level of doublethink. Take the Plame scandal for instance. Michael Kinsley said it best:

So, put it all together and you get: 1) the anonymity of Novak's sources must be protected at all costs for the sake of the First Amendment; and 2) the White House leakers must be exposed and punished at all costs for the sake of national security. Unfortunately for the striking of heroic postures, these two groups are the same people. Either we think they should be named, or we think they should not be named. Which is it?
2.24.2007 5:46pm
Robert Lyman (mail):
Mark, I think your feelings about the substance of the wiretap and SWIFT revelations are swamping the big-picture procedural questions. You wanted them to be public; they are public. I happen to think they should be secret, and that the publicity has materially damaged the fight against terrorists.

But the actual details of these revelations are irrelevant; the quesiton is really: how shall we adjudicate similar future disputes when neither of us can know the substance of what is to be leaked? How can you be sure that the next leak won't be one you oppose? Surely you must admit that there are some government programs for which secrecy is desireable.

I suggest that the decision should be committed in the first instance to security professionals, with elected representatives as a stopgap. You apparently favor the unconstrained discretion of reporters, most of whom will not have access to all the facts when deciding whether or not to publish. Do you really think that's wise? Should we really let unelected reporters override the decisions of our elected representatives, including members of the opposition with every reason to want to embarass those in power?
2.24.2007 5:48pm
Mark Field (mail):

Mark, I think your feelings about the substance of the wiretap and SWIFT revelations are swamping the big-picture procedural questions.


My views on this issue were pretty much set by the Pentagon Papers case and not much affected at all by recent instances. While I do agree on the merits that the wiretapping should have been disclosed, I'm less certain about the SWIFT disclosure. In either case, I don't believe security was harmed and I do believe that the public was and is entitled to know about the violations of FISA.


the quesiton is really: how shall we adjudicate similar future disputes when neither of us can know the substance of what is to be leaked? How can you be sure that the next leak won't be one you oppose? Surely you must admit that there are some government programs for which secrecy is desireable.


I agree with you on what the real issue is. I have a pretty libertarian view of the value of free speech and the need to check abusive government. When it comes to making judgment calls, those values are bound to affect my exercise of judgment.


I suggest that the decision should be committed in the first instance to security professionals, with elected representatives as a stopgap.


The problem is, that these people have demonstrated -- not once but numerous times over the years -- that so-called "secret" information was actually just embarrassing. The people making the decisions are not neutrals, they are partisans. I want a check on their abuses.


Should we really let unelected reporters override the decisions of our elected representatives, including members of the opposition with every reason to want to embarass those in power?


As I said above, in actual practice this system has worked quite well. There are bound to be costs to a free press, just as there are to a free market. That doesn't mean we should put the government in complete control over either one.
2.24.2007 6:09pm
TFKW:
It confuses me why so little discussion of this topic focuses on journalistic ethics. One of the things that my (law school) professional responsibility class tried to hammer home was that what is a legal duty and what is an ethical duty are not the same thing, and they can conflict.

I think a lot of people nowadays were raised to expect neat, tidy, win-win situations where all you have to do is do right and you will come out okay. It is not at all obvious why that should be so; I happen to find that attitude downright bizarre.

Another way to look at it is that any professional should evaluate their ethical duties as well as their legal ones, and they should be prepared to face situations where they have to choose to do what is ethical even if it means legal sanctions. Being honest in that situation involves admitting that the court has to vindicate its authority, and sometimes your ethical duties will require you to go to jail. Blaming the law might not be the right or just answer. The corollary to this, of course, if that you should seriously consider whether publishing something is the right thing to do, admit when you are wrong, and deal with the consequences. Regardless of what profession you are in, maybe if you can't take it seriously, you shouldn't be in it.
2.24.2007 6:23pm
Robert Lyman (mail):
The problem is, that these people have demonstrated -- not once but numerous times over the years -- that so-called "secret" information was actually just embarrassing.

I find it exceedingly hard to believe that the opposition party in Congress would not make full use of embarassing information. Do you have evidence that they wouldn't? Again, I'm not suggesting that leakers just shut up and do nothing, I'm suggesting they take what they would have given to a reporter to Congress instead.

The people making the decisions are not neutrals, they are partisans.

Much the same can be said of leakers (and the press, for that matter). What makes you think that someone who chooses to break the public trust (that's what a security clearance is) is anything but a partisan? Meanwhile the press is likely to get only a partial, biased account from a (partisan) leaker, which of course will be hard to counter without the still further release of classified information.

I want a check on their abuses.

I'd like a check on leaker abuses, what do you propose?

You seem to have a rather romantic view of leakers as idealists fighing a corrupt government; I'm inclined to view them as no less corrupt than their bosses except for a notable willingness to ignore their promises and the criminal law.

(As an aside, I don't think the Pentagon Papers should have been published, although I'll admit considerable ignorance in that area)
2.24.2007 6:37pm
TDPerkins (mail):
Well, as for Hamilton's views of jury nullification.
As far back as 1894 Alexander Hamilton admonished that “Jurors should acquit even against the judge’s instruction…if exercising their judgment with discretion and honesty they have a clear. conviction that the charge of the court is wrong.”

I believe it to be the uncontroverted feeling of the Founders that jury nullification was "the palladium of liberties” and it is required to be available to the defense for their understanding of due process to be satisfied in court procedure.


That said, I do not think they would execpt it to work for Mr. Wolf.
2.24.2007 7:02pm
trotsky (mail):
Robert Lyman,

Good question. One quick answer is the able Bill Gertz of the Washington Times, who boasts on his own Web site.

Former CIA Director R. James Woolsey stated: “When I was DCI [Director of Central Intelligence] Bill used to drive me crazy because I couldn’t figure out where the leaks were coming from. Now that I’ve been outside for two years, I read him religiously to find out what’s going on.” Secretary of Energy Bill Richardson told the author: "We talk about your stories at Cabinet meetings.” Defense Secretary William S. Cohen remarked to the head of China's military intelligence service that Bill "has access to more intelligence information than anyone I know." Senior CIA officials, too, have criticized him during closed hearings before Congress regarding his news reporting based on extraordinary access to classified information.
2.24.2007 7:30pm
Mark Field (mail):

I find it exceedingly hard to believe that the opposition party in Congress would not make full use of embarassing information. Do you have evidence that they wouldn't?


Yes, the craven behavior of the Democrats, including my own Congresswoman, Jane Harman, who were made aware of the FISA violations.


Again, I'm not suggesting that leakers just shut up and do nothing, I'm suggesting they take what they would have given to a reporter to Congress instead.


I thought I already agreed with that.


What makes you think that someone who chooses to break the public trust (that's what a security clearance is) is anything but a partisan?


The fact that they are not usually running for office. That's not to deny they have an ax to grind; they often do. But they don't necessarily have the same party-protection concerns which in my view are disrupting the checks and balances of Federalist 51.


I'd like a check on leaker abuses, what do you propose?


I'm pretty satisfied with the current system. I have indicated a willingness throughout this thread to tighten it up some, and also indicated I don't have any sympathy for many of the more extreme claims. I am, however, willing to tolerate some occasional abuses because of the real benefits I see in cases like the Pentagon Papers and FISA.


I believe it to be the uncontroverted feeling of the Founders that jury nullification was "the palladium of liberties” and it is required to be available to the defense for their understanding of due process to be satisfied in court procedure.


I had this vague recollection that Hamilton took the opposite position during the Alien and Sedition Act controversy. I could be wrong.
2.24.2007 8:09pm
TDPerkins (mail):
I had this vague recollection that Hamilton took the opposite position during the Alien and Sedition Act controversy


I would welcome any information you have to the contrary of my views.

Thank you, Tom Perkins,
ml, msl, &pfpp
2.24.2007 8:21pm
Robert Lyman (mail):
Yes, the craven behavior of the Democrats

Well, that proves that there is no point in us discussing this further. If you can't admit that they might have simply had a different opinion than you, but insist that they were "craven," and if you regard the wiretap program as "embarassing," rather than something subject to ongoing and substantive legal disagreement, then we're too far apart to bother.
2.24.2007 8:51pm
Mark Field (mail):

I would welcome any information you have to the contrary of my views.


I double-checked and Hamilton did not change his view; you are correct. I may be thinking of someone else, or I may be just in error.


If you can't admit that they might have simply had a different opinion than you, but insist that they were "craven,"


I describe as "craven" the passiveness (passivity?) in the face of persistent violation of the law. The program itself may be desirable or not; it's so secret I can't pretend to have an informed opinion on that. What should NOT be controversial is that no administration should be permitted simply to ignore a law. Congress had a responsibility either to change the law or to halt the violations. Because the Members don't seem even to have considered this responsibility, I think them "craven".

In Harman's case in particular, she first defended the "program" and then denounced it as a violation of the law under political pressure from people like, well, me. I think it's fair to call that "craven".

if you regard the wiretap program as "embarassing," rather than something subject to ongoing and substantive legal disagreement

It's certainly embarrassing for the Administration to be committing felonies on a regular basis. I think that's a matter which the public has a right to know. As I said, the merits of the program itself are subject to reasonable debate.
2.24.2007 9:27pm
Robert Lyman (mail):
Mark, my point is that I don't agree with your opinion of the program as illegal or involving any felonies at all. If I did, I would agree with your overall assesment. But it's not like it involves breaking and entering.

Meanwhile, the SWIFT program did catch terrorists, and will be ended as a result of publication. This you do not consider a "harm."

Hence, I see little or no common ground between us on these particular issues.

Your detailed description of your representative's behavior does seem to merit being called "craven."

Oh, and I didn't really mean to suggest that the average leaker was "partisan" in the sense of "belonging to a political party," although many do. I meant "having an adgenda," which may be in the national interest or may be motivated by personal pique, as in the case of Mark Felt (who apparently did something in the national interest by mistake).
2.24.2007 9:39pm
Robert Lyman (mail):
Missed one point: I thing Congress is in a much better position to evaluate the legality of presidiential action than either reporters (who know little of the law) or leakers with an agenda.
2.24.2007 9:43pm
Mark Field (mail):

I didn't really mean to suggest that the average leaker was "partisan" in the sense of "belonging to a political party," although many do. I meant "having an adgenda," which may be in the national interest or may be motivated by personal pique, as in the case of Mark Felt (who apparently did something in the national interest by mistake)


Fair enough.
2.24.2007 10:00pm
Harry Eagar (mail):
Robert Lyman sez: 'I'm suggesting that leaker, instead of calling a reporter, should call a lawmaker.'

I guess you haven't been around lawmakers much.

Tne legal arguments on this thread may be profound, but they are unworldly. One of my recent stories came via a leak after tne leaker had spent a lot of time and money trying to get legislators interested.

Also, I was amused by the suggestion that reporters were unqualified to pass judgment on leaks because they are not lawyers. And not only because quite a few reporters do have law degrees (though I am not among them).
2.25.2007 3:43am
Robert Lyman (mail):
Harry,

In context, I was talking about leaks of (over)classified material. I don't actually have real problem with non-national-security related leaks (except to the extent that reporters become the lapdogs of the leakers).

And I am a lawyer, although admittedly not one with much experience. The way that news stories twist, shade, turn upside down, warp, and generally confuse the simplest of legal issues--especially in cases where I'm on the inside of the case, and understand it thoroughly--leads me to conclude that law degree or not, most reporters don't understand the law. I have at times wondered--were these people in the same courtroom as I was?

That doesn't make them bad people; I don't understand opera, but then again nobody pays me to write about opera every day.

But in a case where the value of the leak turns on the leakers claim that somebody powerful is doing something illegal, a greater understanding of the law that one sees in the average newspaper is pretty important.
2.25.2007 7:59am
Bruce:
Wow, often the oomments here suck, particularly on political subjects, but several of the ones on this post are pretty good.
2.25.2007 11:51am
DiverDan (mail):
I had opined that

"if and to the extent that any "reporter's privilege" is justified by public policy reasons, it certainly does not apply to the situation where the reporter knows ... that the mere act of disclosure is itself a criminal offense."

In response, Mark Field noted as follows:

"It's a little more complicated than this because, as others have pointed out, it's a crime to reveal classified information. Thus, if something is wrongly classified, revealing the information may be both beneficial to the public and criminal. That's the hard issue."

I don't believe that this makes it a hard case; while we might disagree as to who has the ultimate right to decide what information ought or ought not to be classified, I would hope we can agree that the right to decide ought not be exercised by an unelected and unaccountable journalist, whose political biases and judgments may cloud his or her opinion of what disclosure is in "the public interest", or by an unknown leaker hiding behind a veil of promised confidentiality, who may have ulterior motives (i.e., embarrassing a disliked superior or, as in the Plame case, discrediting one who has criticized the administration). And the issue of what disclosure is "beneficial to the public" is often debatable; the right result in this "hard case", in my opinion, is still to criminalize the disclosure, and reject any journalist's privilege. If the leaker really thinks that the information ought not be classified, there are proper administrative channels to pursue that result, which ensures that all relevant criteria concerning classification, such as whether disclosure will endanger any government employees or American citizens, whether disclosure will hinder America's foreign relations, or adversely affect American commercial interests abroad, whether disclosure would violate some person's privacy rights, etc., can be properly considered by the appropriate government personnel, who, if they are not our elected representatives, are at least answerable to them.
2.25.2007 12:52pm