Newspapers Confidentiality: Martyrs to a lost cause

In the United States, two top journalists face the threat of prison for protecting sources who leaked highly sensitive information to them. But, asks Mary Dejevsky, should they be covering up such abuses of power?

The New York Times is continuing to back one of its senior reporters, Judith Miller, who faces a prison sentence for refusing to divulge the source for a story she had researched but never wrote. Time magazine, on the other hand, has tried to protect its reporter, Matthew Cooper, by agreeing to hand over all his notes to the court.

This is a battle that had, until Time's decision last Friday, united most of US journalism. In all, six US reporters currently risk prison for contempt of court for refusing to name the person or persons who gave them highly sensitive information.The other four are also employed by major US news organisations, but have not yet exhausted the appeals process.

All have defied court orders, insisting that they have a duty to protect their sources, and if this was all there was to these stories, the conduct of these reporters would be admirable, indeed heroic. Already they are being held up as martyrs to the high journalistic cause - and Time magazine is being branded a traitor.

An ocean of ink has been spent denouncing the judicial authorities for pursuing these upright hacks. Websites devoted to media freedom overflow with righteous indignation. And their cause was recently taken up by the Paris-based Reporters sans Frontières, which called the Supreme Court decision "retrograde and freedom-curtailing".

Miller and Cooper now enjoy a celebrity beyond anything they might have earned from their writing. The other four have yet to exhaust the appeals procedure, but the similarities between the two cases suggest the outcome will be same.

Now "Thou shalt not reveal thy sources" is one of the most sacred commandments of journalism. And there are impeccable arguments for this. There is the elementary principle of confidence: "sources" should not have to feel they are risking life, limb or livelihood by communicating confidential information to a journalist to get it into the public domain. An employer or other aggrieved party may mount an investigation and unmask the "leaker" by other means, but the journalist should never be complicit.

A second argument relates to the integrity of journalism: if a reporter names a source under pressure from the state, or anyone else in authority, the heavy hand will be applied again and the independence, the watchdog function of the fourth estate, will be increasingly compromised. And the third argument is naked self-interest: if a journalist once betrays a source, no confidential information, no information that is inconvenient to the authorities or an individual in power, will ever come that reporter's way again. On the other hand, a journalist with a reputation for keeping confidences will find other secrets winging their way in his or her direction.

The classic example is the history of "deep throat", who supplied inside information on the Watergate cover-up that ended Richard Nixon's presidency. His identity was disclosed only recently, when he was in old age and gravely ill. Even then, it was not divulged by either of the reporters involved.

The romance of Watergate still haunts much American journalism. But the two cases now reaching their conclusion are rather different. For the clear intention of these leaks was not to expose wrongdoing on the part of the powerful, but to protect their - dubious - interests. The first leak, reported to have come from unnamed officials in George Bush's White House, blew the cover of a woman named Valerie Plame, a secret agent working for the Central Information Agency. The second, dating from 1999, named Wen Ho Lee, an American scientist of Taiwanese origin, as a suspected spy. Lee worked at the top-secret nuclear establishment at Los Alamos and was accused of selling nuclear secrets to China.

In each case, the career of the named individual was ruined. Ms Plame, a highly trained operative, can never work under cover again. Exposing a US secret agent is a federal crime, which is why the courts have required the journalists who received the information to say where it came from.

Wen Ho Lee was arrested at his home in full view of his neighbours, held in solitary confinement for nine months and openly branded a traitor. He was later exonerated on all charges but the least serious - the unauthorised removal of documents from his laboratory - and offered a full apology from the judge. He is now suing for damages and the grand jury investigating his claim has required Robert Drogin of the Los Angeles Times and the three other reporters to reveal their sources.

What distinguishes these cases from other confidentiality cases is that in neither, by any stretch of the imagination, was the information leaked in the public interest. On the contrary, there can be little doubt that the leaks were malicious and intended to cause maximum damage to the named individual or the family.

Plame's husband, Joseph Clarke, claims that she was "outed" to harm and embarrass him. Clarke is a former US ambassador who told President Bush he had found no evidence that Saddam Hussein tried to buy uranium in Niger. When that claim was included in Bush's state of the Union address, Clarke refuted it in print. Plame's identity was then disclosed.

The framing of Wen Ho Lee came amid a hysterical hue and cry in Congress about alleged thefts of US nuclear secrets by China. The intelligence services and the FBI were under pressure to explain why they had not detected the supposed haemorrhage of secrets earlier and why they had no one under arrest. It later transpired that most, if not all, the supposedly secret material was openly available in scientific journals. The beneficiaries of the leaked information are thus not hard to find. The "leakers" are not honest whistle-blowers alerting the media to abuses of power, they are people in power trying to protect their backs. In these circumstances, it is hard to understand why Miller and the others are so fiercely protecting these "sources".

It might just be possible to argue that confidentiality and trust are indivisible, and that to do the court's bidding here could call the whole principle of source protection into question. Make one exception, this argument would run, and all journalists will be open to pressure from the authorities, and all sources will be liable to be "shopped".

But there is surely a different and more persuasive argument. There are cases, very few, but they exist, where the journalist owes no duty of confidentiality to the source; where, indeed, the journalist's duty is the very opposite - to the individual who has been wronged. Those who ended Plame's career and embarrassed her family deserve to be held to account for what they did. Similarly, those who destroyed Wen Ho Lee's livelihood and reputation.

In both cases there was an abuse of power by people with highly privileged information at their disposal. If exposing suchmalefaction is not the duty of the journalist, we need to wonder whose duty it is. We reporters cannot boast about "telling truth to power", then invoke some high-minded journalistic ethic as a reason for not doing just that.