Monday, July 11, 2005

Open season on confidential sources

Scared silly by the case that landed Judith Miller in jail for not identifying the people she interviewed for a story she never wrote about a crime that evidently wasn’t committed, editors have declared open season on confidential sources.

Issuing urgent directives on the proper handling of confidential informants, Gannett and the Los Angeles Times in the last few days have promulgated convoluted policies guaranteed to frighten and befuddle not only potential sources but also the journalists -- and the readers -- who depend on them.

At Gannett, Phil Currie, the senior vice president for news, instructed staffers via an internal website to be sure to let potential sources know exactly how confidential their identities will be. Or not.

"This does not mean each option must be discussed with the source, but each party should understand the agreement,” said Currie, as quoted by Editor and Publisher, which has been doing a superb job of chronicling the government’s depressing effort to suppress the press.

Among the options available to potential confidential sources of Gannett newspapers, said Phil, are: “(a) the newspaper will not name them in the article; (b) the newspaper will not name them unless a court compels the newspaper to do so; (c) the newspaper will not name them under any circumstances. Some circumstances, he added, “do not merit going to 'level c,' and everyone should be clear on that."

In other words, Phil appears to be saying that confidential informants can be confident their identities either (a) will or (b) won’t be protected. Got that?

At the L.A. Times, editor John S. Carroll told staffers not to put the names of confidential sources on the company’s computers. According to E&P, John said the new policy “was inspired by concern that even if reporters refused to divulge sources, prosecutors could unmask them by issuing subpoenas to the newspaper's technology support staff, or even the chief executive of the Tribune Company, which owns The Los Angeles Times.”

What, then, is the L.A. Times policy on confidential sources? Is a reporter allowed to promise confidentiality to a source, so long as it isn’t written down? If no written record exists, will the newspaper defend a reporter against legal efforts to compel him to reveal his source? If the promise isn’t documented, can’t the newspaper deny it ever existed? Will a reporter be forced to hock her pension to hire lawyers to defend her right to protect her sources? Or, should she just go directly to jail?

The policies articulated by Gannett and LAT are polar opposites. If Gannett wants all the I’s dotted and T’s crossed, this would suggest that publishers, editors, reporters and prospective informants need to execute some sort of pre-interview agreement before the sources are debriefed. The LAT, on the other hand, doesn’t want anything in writing, so there apparently would be no documented arangement, much less the details of the terms enforcing it. Either way, what’s a poor reporter to do?

Checking newsrooms from Baltimore to Detroit to San Diego, E&P’s Joe Strupp found most editors favor the adoption of something like the L.A. Times’ idea of not putting things in writing.

So far as can be determined, none of the newspapers has prohibited outright the use of information from confidential sources, but these posterior-protecting policies for all practical purposes will do just that. Beyond frightening the bejabbers out of every reporter and editor who wants to do the right thing by his employer, the public and his source, these vague and troubling policies would spook any sensible person planning to drop dime on a big story.

The modern news media long have relied on confidential sources to provide unique insights and valuable inside information on urgent matters of public interest that otherwise would not come to light. Every state but Wyoming has established a law to shield reporters under certain circumstances from having to identify confidential informants. (There is no such federal law, which is why Judith Miller is in jail.)

Until now, confidential sources have been assured by reputable news organizations that their identities would be protected at all costs – including legal fees, fines and jail for reporters held in contempt of court for not giving up their sources.

Everything changed last week when Time Inc. broke ranks with the New York Times and chose the path of weaseldom by releasing internal files identifying the confidential sources sought by the federal grand jury investigating the outing of Valerie Plame, the former covert CIA operative.

Ironically, one of the sources identified by Time is Karl Rove, the leader of the White House political braintrust. The source on this is Newsweek, which scooped the rival Time on the contents of its own internal files.

You can’t blame publishers and editors for worrying, like the Cleveland Plain Dealer, about being hauled into court and forced to identify their confidential sources. As Time and the NYT can attest, it is an expensive and emotional distraction fraught with ongoing political, commercial and legal risk.

To minimize the potential exposure to such unwelcome events, newspapers shouldn’t muzzle reporters or jettison confidential sources. Rather, they must develop clear and thoughtful controls over when to grant confidentiality, who deserves it, and whether, if ever, confidentially can be abandoned. The hasty guidelines articulated to date are so timid and vague that they only can chill future reporting.

With wise policies in place, along with a decisive commitment to defend the vital practice of using confidential sources, the press can move forward confidently once again to deliver the significant and compelling stories that only such sources can help produce.

It’s a right and a cause worth defending. And it’s why Judith Miller is sitting in jail.


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