‘If it’s OK with you, I’m going to spoil your day…’

By Edward Wasserman

Week of March 19, 2007

While the Scooter Libby conviction is still fragrant and the matter of the journalists’ conduct hasn’t gone stale, it’s time to raise a question I haven’t seen addressed. That has to do with the permission the reporters got from their confidential sources to go ahead and identify them to prosecutors.

To recap: The 10 reporters who presented much of the weightiest evidence against Vice President Cheney’s former top aide did so, by and large, in spite of agreements they had made with people whose statements they ended up disclosing. They had promised not to reveal the names of those sources, yet reveal them they did.

The reporters faced subpoenas meant to force them to tell what they knew and possible jail time if they refused. (One, Judith Miller, then with the New York Times, spent nearly three months behind bars.) So they went back to their sources to revisit those confidentiality agreements. And the sources – notable among them Libby himself -- agreed to be identified and released the journalists from their promises.

And those releases, we’re assured, made everything OK.

But did they?

Before this matter of getting permission to break your word takes its place on the standard-issue tool-belt of newsroom devices, let’s spend a minute considering why waivers may be a murkier business than they seem.

True, a promise ceases to be binding once the person to whom it’s made no longer insists it be kept. But it’s still a serious thing. A confidentiality agreement is a solemn undertaking. In principle, you’re holding back significant information from the public in order to protect your source from possible harm. You shouldn’t do that unless the source needs protection, and if so you ought to stand by the promise unless there’s good reason not to.

One reason might be that unforeseeable events intervened and made the conduct the promise was meant to ensure plainly wrong. Suppose concealing the source would hurt innocent people in ways nobody could have anticipated, or the source was tricking the reporter into unwittingly serving some dangerous or highly illegal purpose. (Some people would insist the promise still stands, but it’s certainly arguable the reporter would be entitled to disregard it.)

In the Libby affair, however, what happened was entirely foreseeable: Somebody with legal muscle demanded to know who talked and what they said. Withstanding that sort of pressure is the whole reason you have confidentiality deals.

You could also argue that such a promise, though still binding, would lose much of its point if the source no longer had anything to fear from the reporter’s outing him. Suppose the powerful people the source had informed on were all in jail.

But again, in the Libby affair, nothing had changed for the sources. One was Libby himself, and the evidence turned over by his various confidants was powerfully incriminating. Whatever dire consequences the other sources were worried about when they talked to reporters “on background” they continued to face.

So neither of those possible justifications for scrapping confidentiality promises covers this case. What happened was foreseeable, and the consequences of disclosure for the sources remained undesirable.

So we’re back to the releases: If confidential sources waive their secrecy, what’s the problem?

That depends. First, how freely was the consent given? Imagine an informant who trusted the reporter, who would never have spoken if being outed was a possibility. Now the reporter faces jail, and suddenly her fate is in the source’s hands. The source — suppose this is no Scooter Libby, powerful and hard-wired, but a genuine whistleblower — wanted only to get a story out, not to hurt the poor reporter who’s now imploring him for help.

For the powerless whistleblower, the reporter’s pleas take on an emotionally coercive cast. He may relent, but that doesn’t mean he doesn’t need the protection he’s giving up.

Second, if it’s a well-placed official source, remember that the release the reporter is seeking is a major benefit, maybe the difference between freedom and jail. So what’s the price? What does the reporter owe in exchange for this boon?

One of the lessons of the Libby trial, and the CIA leak affair that spawned it, involves the perils of a chummy camaraderie among supposed adversaries in officialdom and the press.

That was how the business began and, I’m afraid, it seems to have ended not with an assertion of press independence, but with just those cozy relationships only reaffirmed and deepened.

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