News editors debate the limits of confidentiality
Confidential sources are overused, but it has become impossible for journalists to cover the government without sources who routinely conduct "briefing and spinning sessions" under the cloak of anonymity, said Mark Whitaker, editor of Newsweek, at a forum here July 17. When--if ever--a news organization's obligation to protect the identity of a confidential source should be trumped was a topic of intense, if collegial, debate between Whitaker and Jim Kelly, managing editor of Time, during a discussion about the beleaguered status of journalism.
The forum, "Is News Journalism Under Siege?" was moderated by Richard Stolley, senior editorial adviser of Time Inc., and sponsored by the Aurora Forum and Stanford Publishing Courses.
Kelly and Whitaker, whom Stolley introduced as "arguably the two most powerful and most influential magazine editors in the English-speaking world," most likely would have preferred to be somewhere else rather than on the Kresge Auditorium stage, Stolley suggested. In addition to facing broad turmoil in the news profession?including a loss of public respect, the loss of younger readers and increased pressure on the bottom line?both Time Inc., publisher of Time, and Newsweek have been the recent focus of criticism surrounding the use of confidential sources.
In May, Newsweek retracted a story that described the alleged desecration of the Koran at the U.S. military prison at Guantanamo Bay, Cuba, after anonymous sources backed away from the story, which was blamed for triggering deadly anti-American riots in Afghanistan, Pakistan and other countries.
On July 1, Time Inc.'s editor-in-chief, Norman Pearlstine, made the controversial decision to turn over confidential notes and e-mails written by Time reporter Matt Cooper in the ongoing investigation into the 2003 leak to the press of Valerie Plame's identity as a CIA operative. The decision was made over Cooper's objections and followed the Supreme Court's refusal to hear an appeal to a U.S. district court ruling that Cooper and New York Times reporter Judith Miller were in contempt of court for refusing to disclose the source or sources who revealed Plame's identity.
On July 13, Cooper testified before a grand jury after receiving a specific waiver from presidential Chief of Staff Karl Rove, whose name appeared as a source of the information in Cooper's office e-mails. Miller has been imprisoned since July 6. (Although 49 states have shield laws or judicial precedents that give protection to reporters asked to disclose confidential sources, there is no federal shield law.)
Cooper would have been willing to go to jail without specific waivers from his sources, Kelly said. The issue is complicated by the fact that Cooper wrote an e-mail message naming the source, Kelly said. Courts have established notes to be the personal property of journalists; no such precedent exists for company e-mail. "If there was no e-mail with Karl Rove's name in it, there would be nothing of any significance for Time Inc. to turn over to the special counsel," Kelly said.
The Plame case is a national-security case, Kelly said. Before he turned over the e-mail and notes, Time Inc.'s editor-in-chief weighed the rights to a free press and the rule of law, which allows a free press, Kelly said. "[Pearlstine] decided to obey the law," he said.
"I don't think [Pearlstine] did the right thing, but he was in a unique situation because of the e-mail," Whitaker said. "I think the way he presented his case was pretty bad. I think at the end of the day, he didn't appreciate as a practical matter what a setback this is for the entire profession in terms of setting this precedent. He could have really gone down fighting and used it as an opportunity to say it was under protest and to very vigorously still defend the principle."
There are sources that he personally would have no trouble going to jail to protect, Kelly said. However, he drew a distinction between what he called "classic confidential sources," such as government and corporate whistleblowers, and others.
One of the reasons the Plame case is fascinating is because journalists found themselves protecting sources who are not classic whistleblowers, but "sources who, in fact, were potentially breaking a very important law"?the Intelligence Identities Protection Act, Kelly said. The 1982 law makes it a federal crime under certain circumstances to reveal the identity of a covert U.S. operative.
Whitaker disagreed that the motivations of the source changed the principle of protecting confidentiality. The argument has been made that there should be a different standard for protecting administration officials who may have talked about Plame for their own political motives than the standards applied to "pure whistleblowers," he said. The flaw in that argument is that what constitutes troublemaking "often is in the eye of the beholder," Whitaker said. "A lot of people who were talking to [Washington Post reporters] Woodward and Bernstein during Watergate were viewed by the right and by the Nixon administration as troublemakers."
Whatever the legal case is, "in order to really get people to trust you, they do have to believe that you'll keep a secret, no matter how hot things get," Whitaker said.
Newsweek is still protecting two sources in the Koran story, including one "who after giving us a story basically couldn't stand behind it and got us into all this trouble" and a Pentagon official who saw the entire contents of the story before publication and who would be "deeply embarrassed" if people knew the official's identity," Whitaker said. Newsweek won't reveal those sources "because we believe in principle," he said.
The controversy could have a silver lining if it leads to more thoughtful and explicit understandings between editors, reporters and their sources, Kelly said. "This might ultimately have a beneficial effect in clearing out a lot of the underbrush of confidential sources."
For years, high-level sources have operated under the implicit understanding that reporters would be willing to go to jail rather than expose them, Kelly said. In the future, reporters will think twice about what kind of status they might give an official, he said.
"I think going forward, a lot of people in Washington who are classic anonymous sources who expect confidential status will probably be more careful in dealing with reporters?not just with Time, but other publications," he said.
The editors discussed other topics during the 90-minute forum. The following also were included in their remarks:
On why the news media has lost credibility:
Whitaker: "One reason we've lost a lot of credibility is that there are so many different forms of the media?and a lot of those forms, unfortunately, are not ones that have a lot of credibility even with us." The proliferation of adversarial talk analysis "has conditioned people to view what we do as journalists ? less and less as a noble search for truth and more and more as a constant war of spin. When people turn on the TV or listen to the radio, they see a lot of shouting and a lot of heat but not much light."
On charges that the press is too liberal:
Kelly: It's "too accepting of any administration?no matter who's in office. I think it's too Establishment." The "really good reporters are equal-opportunity curmudgeons?they will give a hard time to a Republican and give a hard time to a Democrat."
Whitaker: "In terms of covering administrations and politicians, the press as a whole follows the polls. Reporting on Reagan was very, very tough all the years he was running for office and the early part of his administration, until it became clear that a pretty sizable majority of Americans really liked him. ? It's true of Democratic administrations and Republican administrations. The fact is, now that Bush is sinking in the polls, the reporting has gotten a lot tougher."
On whether media conglomerates pose a threat to the free flow of information:
Whitaker: "I think increasingly with the advent of the Internet and blogging, the idea that [conglomerates] somehow control the information agenda is just ridiculous. If Viacom is so all-powerful, why was 60 Minutes, probably the most valued news asset at CBS, brought low by a bunch of bloggers? No matter how big you are, no matter how rich you are, how powerful, you'll be held accountable in this day and age."
On blogs as news sources:
Whitaker: "It's too early to tell. It's a fascinating phenomenon." But "the idea that blogs are going to replace the mainstream media, at the moment, is laughable. If the mainstream media disappears, what would blogs have to write about?"
Kelly: "I think it's great. Let everyone blog. ... At some point, someone will say, 'You know, we really should do, sort of, the best of the blogs.' Someone else is going to say, "You know, it's great. But is there some way I could, like, carry this and read it?' And someone else will say, 'Maybe it could come out weekly.' You watch."