Reporters forced to fight for their sources

The US press is reeling from legal challenges to its independence
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The Independent Online

If journalists in America have been feeling under siege recently from a government determined to force them to reveal their sources, their alarm can only be greater now. Last week, it emerged that the New York Times has found itself obliged to sue the government to stop it getting hold of the telephone records of two of its star reporters.

If journalists in America have been feeling under siege recently from a government determined to force them to reveal their sources, their alarm can only be greater now. Last week, it emerged that the New York Times has found itself obliged to sue the government to stop it getting hold of the telephone records of two of its star reporters.

The case has the potential of reaching as far as the US Supreme Court and setting new legal parameters for press freedom - or the lack of it - in the United States. The newspaper's team of lawyers, who include Kenneth Starr, the former nemesis of President Bill Clinton, is decrying the government's attempts to seize records from a 20-day period after the attacks on 11 September 2001 as a breach of the constitution.

Caught in this maelstrom are the two high-profile national security reporters, Judith Miller and Philip Shenon. The US government says that the reporters, because of what they learned and what they wrote, compromised FBI plans to raid two charities, in Illinois and Texas, suspected of abetting and funding both Palestinian terrorists and Islamic extremists in the wake of the attacks on the World Trade Center. Mr Shenon is accused, for example, of tipping off one of the groups, the Global Relief Foundation, before they were searched.

The Times retorts that the reporters were simply doing their job. It is also contending that the government is over-reaching, and that using the phone records - to be taken not from the paper but from the telephone company - would undermine the traditional bargain of identity-protection between reporters and sources.

"Given the scope and breadth of Mr Shenon's and Ms Miller's reporting in the fall of 2001, the records sought would likely reveal the identities of not one or two but dozens of confidential sources," the newspaper asserts in the suit, filed last week in Washington DC, that seeks an injunction to stop prosecutors accessing the records.

This is the only the most recent in a series of skirmishes between the Bush administration and US media organisations. Journalists have increasingly found themselves forced, usually under subpoena, to discuss or reveal their sources to help the government track down officials who have leaked information. The most important case is an ongoing probe to find out who exposed the identity of an undercover CIA agent, Valerie Plame.

That investigation, headed by Patrick Fitzgerald, a District Attorney in Chicago, is steeped in politics. Ms Plame is the wife of Joseph Wilson, the former Clinton-era national security officer, who said last year that he was ignored by the Bush administration when he cast doubt on claims that Iraq had attempted to buy nuclear materials from Niger. His wife's identity was revealed soon after, and Wilson alleged it was done purposely to punish him.

The Plame probe has already ensnared some of America's best-known reporters and media outlets, including Bob Novak of the Chicago Sun-Times - to whom Ms Plame's name was first given - a well as Walter Pincus at the Washington Post and NBC's political editor, Tim Russert. At least four of the journalists involved have, under threat of imprisonment, cooperated with the prosecutor, at least to some extent.

The government's success in persuading journalists to cooperate has dismayed defenders of press freedom. "Every time I hear about one of these reporters going in to speak about their sources, my stomach drops," says Jane Kirtley, a professor of media ethics and law at the University of Minnesota. "We're in a crisis on this. I'm terrified about how this is going to turn out for media credibility."

But now, with the New York Times digging its heels in over the Miller-Shenon case - also being pursued by DA Fitzgerald - the scope of the government's bullying of reporters may be put to the test.

Representing the newspaper, Floyd Abrams, a veteran defender of First Amendment freedom of expression rights, has already urged Mr Fitzpatrick to back away from his threat to take the phone records, in the interest of preserving a "vigorous, aggressive and independent press". In a letter written with Mr Starr, he said that the hunt for the records was "deeply troubling" and "wholly inconsistent with constitutional principles".

Mr Abrams last week also suggested that if the government prevails over the Times, the future of journalism will be impaired. "Sources won't trust journalists, and therefore the public won't receive news," he argued, adding that it appeared to be the first time that government officials have attempted to unmask journalists' sources by seizing telephone records. While news organisations might resist such a demand, it is thought unlikely that the telephone companies would have any interest in not cooperating.

Those berating the government include Carl Bernstein, who, with Bob Woodward, unearthed the Nixon Watergate scandal for the Washington Post. "It's part of a disturbing trend in which the federal government has decided that reporters are fair game and the most essential protection that they have to do their work is no longer sacrosanct," he said.

Among other ongoing cases, journalists from several newspapers have been held in contempt by the courts for refusing to disclose sources used in reporting the case of nuclear scientist Wen Ho Lee, who was accused of espionage at the Los Alamos nuclear laboratory in New Mexico. He later pleaded guilty to much lesser charges.

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