By Michael Stoll
Posted February 9, 2004
|David Greene, Seth Rosenfeld and Peter Sussman discuss the dilemma of anonymous sources.|
For a journalist the anonymous source is often essential to investigating the powerful. But for all their value as "whistle-blowers," sources granted anonymity can deceive the press and public, even break the law.
On Thursday evening at a Society of Professional Journalists salon in San Francisco, two journalists and a media lawyer discussed how to use anonymous sources -- without being used by them.
"The problem is that the press has allowed itself to become a passive vehicle for all kinds of self-serving information," said Peter Sussman, an independent journalist, former San Francisco Chronicle editor and ethics maven. "We're allowing ourselves to be used by people who have an expectation of anonymity, and we are doing serious harm in the process."
But Seth Rosenfeld, an investigative reporter at the Chronicle, said anonymous sources "can be crucial to reporting."
"Part of our job is to be used, in a certain way," he said. "Part of our job is to hear from whistle-blowers, people who have an ax to grind. We're supposed to listen to them."
Reporters and editors thought it had been resolved in the Watergate era that unmasking a secret source was a violation of journalistic ethics. But the question is being revisited in the light of current controversies.
Novak case raises questions
The most salient recent case involves Robert Novak, the conservative national newspaper columnist who recently revealed the name of an undercover CIA agent, leaked to him illegally by as yet unnamed Bush administration officials. Occasionally, sources granted anonymity use reporters to lie or harm others. Is that a good reason to reveal their identity? If reporters begin to name such sources, will well-meaning potential sources clam up fearing that they too may be outed?
"As much as we all in this room want to see Karl Rove in the stockade, I don't want to discourage any journalist from having Karl Rove as a source," said David Greene, a lawyer and executive director of the First Amendment Project in Oakland, sharing his suspicions for who in the White House was responsible for the leak. Mr. Rove is the president's chief of staff.
"In a lot of other situations he could be an incredibly valuable source," attorney Greene said. "If that means we have to take some of the nonsense that he's dishing out along with the good stuff, that's the way it works sometimes."
No federal reporter shield law
Legally, however, columnist Novak may not have much room to maneuver, since the leak was a crime to which he is the star witness. A judge could still demand Mr. Novak reveal his source. Shield laws designed to protect journalists' sources, which exist in 30 states, would not help in this case; the investigation is federal and it would land in federal court.
Judges can compel those who witness crimes to testify. Reporters are not exempt, Mr. Greene said, although courts normally would compel a journalist to reveal a source only if there were no other reasonable means of establishing the truth.
The conversation, held in the cellar of the London Wine Bar on Sansome Street, was sponsored by the Northern California chapter of the Society of Professional Journalists. It attracted a crowd of society members and more than a dozen students from U.C. Berkeley's Graduate School of Journalism. The chapter's president, Beverly Kees, moderated.
Don't burn sources
Neither Mr. Sussman nor Mr. Rosenfeld said he would recommend a journalist "burn," or reveal the identity of, an anonymous source once anonymity is granted. But both were troubled by the apparent lack of interest among many journalists in limiting confidentiality agreements -- and then checking out the information for themselves before deciding whether to publish.
How to avoid this? Mr. Rosenfeld said "If I could not convince him, despite my best efforts to go on the record, there is one more step. I would at least try to work out how I could attribute it.
"In other words, could I say, 'a very senior White House official'? Or could I only say, 'an administration official'? ... My goal would be to extract an agreement for the most specific attribution I could get. I would want to do that up front, because once you agree to go off the record, it's off the record."
Anonymity has gone too far
But Mr. Sussman doubted most reporters would be that assertive. "The balance has shifted to such a great extent toward a simply supine acceptance that the most trivial information is now unattributed," Mr. Sussman said. "There's an expectation among Washington officials that they will get this because everyone gives it to them. ... We are being used to provide all kinds of spin."
Mr. Sussman said reporters should expose both the motivation and tactics of information leakers. But when journalists agree to go off the record with sources, they eliminate the possibility of doing those stories. They become trapped by their own pledges of confidence.
"If you come away with no other feeling," Ms. Kees interjected, "that pledge of confidentiality should never be given lightly."
Which, all the panelists agreed, is what Mr. Novak did when he printed the name of the spy, Valerie Plame, husband of Bush administration critic Joseph Wilson.
Novak was 'sloppy'
"Novak did a really sloppy job," Mr. Rosenfeld said.
Mr. Sussman said the challenge for the media is not to demand colleagues violate their oaths, but to call attention to the partisan motivations they are harboring while hiding behind pledges of confidentiality.
"As part of our journalistic ethics," he explained, "we have the responsibility to call attention to what Novak did. Not that he didn't reveal the source, but the way he allowed himself to be used by someone with an illegal and partisan agenda."
"We don't want Robert Novak to be punished," Mr. Greene added. "If you publish truthful information and you yourself did nothing wrong -- you yourself committed no crime in receiving it or in obtaining it -- you're protected. That's what the Pentagon Papers case was about. You can publish; you can't be stopped."
In the 1971 Pentagon Papers case, Defense Department analyst Daniel Ellsberg revealed secret documents showing that several presidents had lied about America's military involvement in Vietnam. That leak was illegal, Mr. Rosenfeld said, but "he broke the law because he thought he had a higher ethical duty. ... In a sense, reporters are, on a regular basis, parties to criminal activity, which is the illegal leaking of oftentimes very newsworthy information.
"The ultimate purpose of journalism is to do good -- to give useful information
to society," Mr. Rosenfeld said. "It's not to go out and subject people
to pain and misery by humiliating them in the press."