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Leak Riddle: Who's Playing Whom?

By Mark Feldstein
Sunday, July 24, 2005

Judith Miller, the Pulitzer Prize-winning New York Times reporter who now wears a brown and green prison jumpsuit, will soon enter her third week in a jail cell just a few miles from the White House where administration officials suspected of leaking classified information to journalists -- including the president's top political strategist, Karl Rove -- are still running the government.

Despite the widespread fixation on this political scandal, there is also an important journalistic one: the conflict of interest that reporters routinely have with high-level sources who leak sensitive information. It is the dirty little secret of the Washington press corps, a kind of unspoken conspiracy in which reporters conceal not only their sources' identities but more importantly the underlying motives for the leaks. This Faustian pact can be a disservice to the public, which learns only a part of the larger truth, a version that may be accurate as far as it goes but is by definition deficient.

I know. I've been an investigative reporter and received subpoenas in both criminal and civil cases that jeopardized my pledge of confidentiality to sources; once I even brought a packed suitcase into federal court in anticipation of going to jail. In the high-profile public corruption grand jury probes that I covered in Washington, some of my best sources publicly denied providing information that they had in fact leaked to me. This kind of disinformation is common and puts journalists in the awkward position of having to choose between reporting what they know is really going on or breaking their pledge of confidentiality to their sources.

The current scandal began two years ago amid the finger-pointing that followed the U.S. invasion of Iraq, which famously failed to turn up the weapons of mass destruction that President Bush had claimed as the main reason for America's preemptive war. Joseph C. Wilson IV, a longtime diplomat and Democrat, accused the Bush administration of deliberately using intelligence that "was twisted to exaggerate the Iraqi threat." Wilson reported that he had personally conducted an investigation on behalf of the Central Intelligence Agency and found no evidence to support the president's claim that Saddam Hussein had tried to acquire African uranium to build nuclear weapons.

Administration officials responded by trying to undermine Wilson's story, telling journalists that his fact-finding trip to Africa was a boondoggle arranged by his wife who worked for the CIA. Conservative columnist Robert Novak published the charge and soon a special prosecutor was issuing subpoenas to learn whether the White House had violated federal law by outing the identity of Wilson's wife, Valerie Plame.

So why is Miller in jail, even though she never wrote a story on the subject? Surprisingly, the precise role of journalists is still shrouded in mystery. Reporters, who as a class are usually the biggest blabbermouths in town, have for the most part been uncharacteristically silent. Still, enough has come out about the behind-the-scenes maneuvering to illustrate how the system works: Administration officials reportedly first peddled their goods on Wilson to the top-tier media companies -- The Washington Post, the New York Times, and Time magazine. Only after reporters at these influential mainstream news organizations failed to publish the story did it end up in a column by Novak, whose reputation as a conservative ideologue may have made him a more obvious and therefore less credible outlet for conveying administration spin. Even with first-rung publications, high-level sources apparently laid down conditions. Time's Matt Cooper, for example, sent his editors an e-mail stating that White House adviser Rove's leak was provided only "on double super secret background . . . don't source this to rove or even WH [White House]."

Why does the press go along with this? Because government officials provide the media with their coin of the realm -- information -- a currency that can have quite literal commercial value. Although news outlets return the favor by supplying publicity, the law of supply and demand favors sources, at least in Washington, where hungry reporters far outnumber officials who are willing to leak inside information. As a result, sources with exclusive stories are in a position to take their pick of journalists and dictate terms about the coverage they receive in exchange. "White House officials and White House reporters are tight-lipped" about how this unappetizing news sausage is made, admitted President Clinton's former domestic policy adviser (and sometime leaker) Bruce Reed, "because these leaks are fake and somewhat ridiculous, like teleprompters or the congressional auto-pen."

Most leaks consist of quick telephone conversations that take place whenreporters and sources go through their Rolodexes making the rounds of their daily contacts. Note-taking is hurried and often sloppy, the terms of attribution signaled by an insider's shorthand -- on the record, off the record, background, deep background -- that is seldom defined explicitly but occasionally disputed after publication.

The problem is that by deliberately omitting the essential explanation of how the source is attempting to manipulate the agenda, the journalist often becomes a virtual accomplice hiding the ongoing but subterranean bureaucratic or ideological conflict at the heart of the story. In the Plame case, "this isn't even about Wilson," says Scott Armstrong, a former journalist and founder of the nonprofit National Security Archive. "It has to do with two institutions fighting it out, with the CIA saying we didn't [screw] up, the White House did." But little of that has been reflected in media coverage of the story.

To be sure, it is better for reporters to disclose even partial and incomplete information than none at all; and many editors now increasingly insist that stories contain at least some kind of language that attempts to characterize the motives of anonymous sources. In any case, as the late Post publisher PhilipGraham said, journalism is but the "first rough draft of history." The final chapter will be written only by historians. But reporters practice their craft in real time, influencing events while they are still happening, supplying the public with vital information to make informed decisions in a democracy. Indeed, journalism matters in part because it molds the wet and malleable clay of the present before it hardens into history.

If history is any guide, this issue won't go away anytime soon, regardless of the outcome of the current investigation. Anonymous sources have been leaking secret information to the press ever since the republic was founded. President George Washington was incensed upon discovering that verbatim accounts of his confidential treaties and Cabinet minutes were being published in the newspapers of the day, especially since his secretary of state, Thomas Jefferson, was believed to be behind the leaks. In the 19th century, journalists routinely bribed clerks to give them government documents; sometimes competing reporters even pooled their money to raise the necessary funds to pry out particularly costly information.

Moreover, reporters have been getting locked up for protecting their sources since at least 1848, when John Nugent of the New York Tribune refused to tell Congress who leaked him the draft of a secret treaty with Mexico. While in custody, the journalist continued to file stories and doubled his salary, emerging as a hero a month later.

In many ways, today's probe of the Plame leak seems to be -- like the endless Whitewater investigation of President Bill Clinton -- just the most recent criminalizing of bitter policy differences in Washington, political warfare by other means, to paraphrase the Prussian philosopher Karl von Clausewitz. Ironically, whoever leaked Plame's identity may not have broken the law at all, despite the ongoing probe. As Slate media critic Jack Shafer has pointed out, the 1982 Intelligence Identities Protection Act sets the bar very high for prosecuting this kind of disclosure, requiring that leakers first must have been "authorized" to have classified information and then disclosed it "intentionally." Even lawyers who drafted that law say that it wasn't intended for cases like that of Plame. In fact, former Justice Department deputy assistant attorney general Victoria Toensing believes it is "probable" that the prosecutors' probe would have been halted if only it had been challenged on these grounds early on in district court. Some media lawyers admit privately that they wish they had done so but say that the grand jury investigation has now taken on a life of its own by expanding to whether administration officials tried to cover up the leak.

Perjury and obstruction of justice are legal terms, of course; but at the very least, participants in the Plame Game seem to be afflicted with the kind of selective memory endemic to leak investigations. For example, Rove steadfastly denied any involvement in the Plame leak -- until that notorious e-mail outed him as Time's "double super secret" source. Then Rove admitted that he had talked to the press about Plame, but argued through his lawyer that it didn't break the law. Why? Because Rove claimed to have learned of Plame's CIA connection not from classified documents but from other reporters .

Maybe. But my experience has been that reporters seldom gossip about such classified matters as the identity of an undercover CIA operative, if only because they rarely receive such information in the first place and guard it when they do.

In my own brushes with the law over leaks, I always managed to avoid a final showdown with authorities who wanted to know the identity of my sources. Once, a polite threat to reveal incriminating information about a subject on the witness stand led to a prompt dismissal of a subpoena. Another time, I avoided having to testify in a federal grand jury about my sources by agreeing instead to let prosecutors subpoena my original copy of a diary kept by one of the cocaine dealers who supplied Marion Barry, then the mayor of Washington, who was under investigation for drug use. These arrangements weren't perfect, but they kept me out of jail while guarding the confidentiality of my sources.

Similar compromises have occurred with at least some of the journalists who were subpoenaed in the Plame case. Reporters for The Washington Post and NBC negotiated deals early on to restrict their testimony and limit the exposure of their sources. This strategy was apparently more successful than Time magazine's, which initially resisted but then ended up naming names before the grand jury as well as turning over reporting notes and e-mails. Columnist Novak won't say what deal, if any, he struck with prosecutors; most analysts believe he must have cooperated in some fashion to avoid Miller's fate of being jailed for contempt of court.

As for Rove, he's still Bush's top political strategist in the White House -- unless he, too, succumbs to the onslaught of leaking that he knows all too well.

Author's e-mail : feldy@gwu.edu

Mark Feldstein is director of the journalism program and associate professor of media and public affairs at George Washington University. His book "Poisoning the Press: Richard Nixon, Jack Anderson and the Rise of the White House Attack Machine" will be published next year by Farrar, Straus & Giroux.

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