Waivering  | American Journalism Review
 AJR  Features
From AJR,   February/March 2006

Waivering   

A number of journalists have testified about their conversations with confidential sources after receiving waivers from the sources freeing them to do so. Is this a pragmatic way to stay out of jail or a breach of journalistic ethics that could pose big problems for the profession?

By Rachel Smolkin
     

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   » Reporters and Confidential Sources

When reporter Judith Miller emerged from jail in late September after 85 days, she and her boss at the time, New York Times Publisher Arthur Sulzberger Jr., were united in declaring victory. She had received a voluntary, direct waiver from her source releasing her from her promise of confidentiality and enabling her to testify in the federal investigation of a CIA agent's leaked identity.

But one of her attorneys, the famed media lawyer Floyd Abrams, still has doubts about just how voluntary that waiver really was. "I have no idea anymore," Abrams said in December when I asked if he felt comfortable that Miller's source, I. Lewis "Scooter" Libby Jr., had freely granted the release. "Am I comfortable? No." Abrams doesn't think it's fair to ask a journalist to stay in jail when a source calls and asks her to testify because "we can't be sure he means it." On the other hand, adds Abrams, who had approached Libby's lawyer more than a year earlier, more of the things Libby did initially "suggest he didn't want her to testify than vice versa."

The Valerie Plame case marks the first widespread use of waivers that release journalists to disclose confidential conversations with their sources to prosecutors. At Special Counsel Patrick J. Fitzgerald's behest, Libby, then Vice President Dick Cheney's chief of staff, and other White House officials were asked to sign forms freeing reporters from promises of confidentiality. Journalists involved in the case rejected these blanket waivers, but Miller and other reporters ultimately accepted what they described as personal waivers that were voluntary and specific to their situations.

The waivers have exposed troubling fault lines within the industry about when if ever it is appropriate to ask a source for a release from confidentiality, and what rules should govern such post-pledge transactions. Interviews with nearly two dozen journalists and First Amendment lawyers, as well as an e-mail survey sent to reporters and editors by AJR, revealed a striking lack of agreement about the propriety of negotiating such waivers. While virtually all the journalists AJR contacted dismissed blanket waivers as inappropriate and coercive, they differed widely over the merits of personal waivers. Some were deeply disturbed by any infringement on a pledge of confidentiality. Others described reporter-source relationships as a contract that is always subject to further negotiation.

But even if a reporter is willing to negotiate with a source over testimony, the form such discussions should take remains unresolved, suggesting a need for further consensus within the industry. The reporters subpoenaed in the Plame case chose very different paths in obtaining their waivers. Should a reporter talk with a source directly to test the source's sincerity, or would such a conversation introduce potential charges of collusion and obstruction of justice? Should lawyers for the reporter and the source navigate any deal-making? Or does that shirk the reporter's commitment to the source? To what extent should a reporter restrict testimony to protect the source? And after testifying, how much should the reporter disclose to the public?

"I think this whole battle with Mr. Fitzgerald has caused there to be a closer examination about when and how a reporter can go back to a source to discuss whether confidential promises preclude testimony in a case," says media attorney Theodore Boutrous Jr., who represented Time Inc. and its reporter Matthew Cooper in their unsuccessful petition for U.S. Supreme Court review of their contempt citations in the Plame case. "I think it's going to be a new landscape, and so we need a whole new set of principles and protocols that can make this work if it's appropriate but at the same time not forfeit other journalistic values."

Waivers have come up in two other high-profile cases. The federal judge presiding over the civil lawsuit against the government brought by bioterror expert Steven J. Hatfill, who was named a "person of interest" in the 2001 anthrax attacks but has not been charged, ordered as many as 100 federal employees to waive any confidentiality agreements they had with the media. In another civil lawsuit by nuclear weapons scientist Wen Ho Lee, a federal judge ordered Washington Post reporter Walter Pincus to seek permission from his sources to testify; all but one of those sources declined to grant a waiver. And the Justice Department's investigation into who leaked President Bush's decision to allow domestic wiretapping without warrants may test journalists' resolve in a more classic whistleblower case.

"From what I can tell, this phenomenon of it being an accepted practice to go to the source and request permission" to testify is "catching on like wildfire," says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. She combed through her files and unearthed one or two examples of waivers obtained in the 1970s, but nothing like what happened in the Plame case. "I find that naturally distasteful," Dalglish says of the new developments. "The notion that you can go back to a source and ask for permission to identify them should make journalists very uncomfortable."

One journalist who is extremely uncomfortable with waivers in any form is Murray Fromson, a former Associated Press and CBS News correspondent who helped found the Reporters Committee in 1970 amid a spate of government subpoenas ordering reporters to testify and name confidential sources.

"From the beginning, it seemed to me the idea of the Reporters Committee is we don't testify. Period. No ifs, ands and buts about it. Because we are not an arm of government," says Fromson, now a journalism professor at the Annenberg School for Communication at the University of Southern California. "What seems to me is going on is a softening of that position. Maybe I sound like a purist or an old fuddy-duddy, but it seems to me that there's a principle here... I think on this issue you don't negotiate."

But journalists negotiate with sources all the time: Can your off-the-record quote be on background? Can I change the way you are identified on background? I know we agreed this will only be on background, but could I possibly use your fabulous background quote on the record? So what's the difference between asking a source for permission to reveal his or her identity in the paper and asking for permission to make the disclosure to a federal prosecutor?

Stephen Bates, formerly an attorney for the Whitewater independent counsel, wrote a piece in 2000 called "The Reporter's Privilege, Then and Now," in which he argues that, "When prosecutors want evidence from journalists..both sides ought to move beyond the comforting simplicity of absolutism."

Bates, now literary editor of the Wilson Quarterly, does see a difference between negotiating over a quote and requesting a waiver, which he explained this way in an interview: "The source knows you are talking to them as a matter of newsgathering, and if the reporter feels a quote would make the article stronger, that's part of the original arrangement. But if you go back and now essentially act as an agent of the FBI, of law enforcement, then you've changed hats... That's not the arrangement you undertook to start with."

Even so, Bates says, the appropriateness of a waiver request depends in part on the sensitivity of the information shared. If "you think it's something the source won't be uncomfortable with and will save you from jail, I don't think it would be a huge deal."

Gene Roberts, a former executive editor of the Philadelphia Inquirer and managing editor of the New York Times, also sees a distinction but reaches a very different conclusion. "Reporters aren't just quietly going to sources and saying, 'Now do I have your permission?'" to use a quote, says Roberts, who teaches journalism at the Philip Merrill College of Journalism at the University of Maryland. "They're doing it against a backdrop of being questioned or subpoenaed or both by a prosecutor, and that's simply not even close to having a private conversation with someone on a background basis and then saying at the end of a conversation, 'Am I free to quote you on the following?'"

Although the circumstances varied with each reporter involved in the investigation of the Plame leak, when all the cases are added together, the "unmistakable signal being sent to the public is that confidentiality doesn't seem to mean very much, especially as it relates to the Plame case," Roberts says. "Many people might logically think about that long and hard before they talk to a reporter on a confidential basis...

"Once everybody starts cutting corners and shaving and dealing with waivers, then this long-held tradition of inviolability and source agreements sort of starts collapsing, and I think it's going to cause many, many problems in the future," he adds. "And I don't accept at all people saying at this juncture that they haven't seen any chilling effect. I don't think a matter of weeks or months is a fair test of it at all."

Bob Zelnick, chair of Boston University's journalism department and a former ABC News correspondent, likewise calls a request for a waiver "a functional betrayal of the source and the relationship, and I am disheartened to see how many of my colleagues have rushed to this little life preserver at the expense of their sources."

Zelnick characterizes Miller's stint of 85 days in jail as "85 times more of a statement than zero days in jail." He castigates the media for its "thinly veiled surrender" on waivers and its handling of the entire Plame matter. "I think it's a quiet crisis for journalism, and, to some extent, the profession involved brought it on themselves with their clamoring for a national security investigation of the leak, which was of fairly modest consequence," he says. "I think that right from day one, we collaborated in our own demise on this issue."

Another waiver purist is Vanessa Leggett, a Houston freelance writer who spent 168 days in jail for refusing to disclose confidential-source materials to a federal grand jury investigating a murder (see "The Vanessa Leggett Saga," March 2002). Several of Leggett's sources called her attorney while she was in jail to say she could testify if she were incarcerated on their behalf. While those were not the sources Leggett was primarily concerned with protecting, she says she would not have testified even if other sources had come forward because such nuances are lost on the public.

"The general public hasn't got a prayer of distinguishing what's coerced and what's not," Leggett says. The public sees that "she capitulated; she gave up. Their perception is what counts." She dislikes the notion of a waiver in any form. "A journalist should not go back to the source," she says. "A promise is a promise. And in the future, if sources think a promise is a quasi-promise, they're not going to come forward. The more compromised the privilege becomes, the less people are going to come forward."

Myron Farber is a former New York Times reporter who served 40 days in jail in 1978 for refusing to turn over his interview notes about a New Jersey physician accused of murdering his patients. He sees a practical problem with waivers, which he likens to quicksand. "If you step in it, everybody's going to get trapped in something they don't want to be in."

Farber notes most journalists work outside Washington and seek the trust of sources who can't afford high-powered criminal attorneys. "Most reporters are not dealing with the Lewis Libbys of the world who have great resources at their command," Farber says. "I was wandering around New Jersey trying to piece together a 9-year-old murder case. These weren't Lewis Libbys; these were ordinary folks without any real means to engage in legal contests or hire their own lawyers" if he revealed their names.

In most instances, Farber says, reporters are trying to persuade people to share information not highly motivated whistleblowers, but reluctant citizens who might know something pertinent to their stories. "Many times you don't even know what sources are going to say," he says. "You're a professional journalist; it's your responsibility to figure out whether this person knows something. If the person is adamant that they're not going to talk to you except in confidence, you have to make a decision: Either it's in confidence, or you've got to live without the information."

"You can't then go back and say later on, 'That information wasn't as good as I thought it was,' or 'That information is involved in a legal situation, and I've got to extricate myself,' or 'I can't afford to go to jail for one reason or another,' or 'My paper doesn't want me to go to jail.' That is ethically wrong, and it is completely impractical in the real world."

Randy Dryer, a First Amendment lawyer in Utah, says one cause of the current waiver conundrum is the lack of agreement among journalists over how to define the reporter-source relationship. Dryer describes two ways of looking at that relationship, each one leading to a different conclusion about waivers.

"If the relationship is viewed as arising from some special status between the reporter and the source a status akin to an attorney-client or priest-penitent relationship then the concept of a waiver doesn't make sense," Dryer says. "You either have a confidential, protected relationship or you do not. If, however, the relationship arises from a promise of confidentiality by the reporter akin to a contract then it is perfectly legitimate for a reporter to go back to the source and ask to renegotiate the terms of the agreement. In that event, the question for the reporter is: Is the source's waiver or release of the pledge of confidentiality voluntarily given? A 'waiver' obtained not by the reporter but by the prosecutor would be suspect."

Dryer adds that if the reporter later learns the source "knowingly provided false information in exchange for confidentiality then, under a contract theory, the reporter would be entitled to 'void' the contract on the grounds that the source breached the agreement or obtained the pledge of confidentiality under false pretenses."

USA Today Editor Ken Paulson sees the reporter-source relationship as a contractual one. "When you agree to accept information on the condition that you not identify the source, you're actually entering into a contract with that source," says Paulson, a journalist and lawyer who has enacted a strict policy on the use of unnamed sources in his paper. "In any contract, the parties are free to renegotiate. So an individual waiver is actually a renegotiation of the terms of that agreement."

Paulson notes that changing circumstances may alter a source's desire for anonymity. "A source can give a reporter information under certain conditions," Paulson says. "But then along comes a grand jury, front-page headlines and jail terms. Under those circumstances, some sources are going to say, 'This is getting out of hand, and I'm going to waive my right'" to confidentiality.

The key, Paulson adds, is whether the waiver is truly voluntary. "It's up to the reporter on a one-on-one basis to determine if the source is actually waiving the rights under the agreement," he says. "I think you have to look into the eyes of your source [or] at the very least have a one-on-one phone conversation" to determine the source's true preference.

Miller did that. In the summer of 2005, criminal attorney Robert S. Bennett, who had joined her legal team, and others were urging her to let him approach Libby's lawyer. After she had been in prison some 60 days, she "came up with the idea" that she wanted to hear from Libby directly, recounts Abrams, another of her lawyers, describing the "development" of Miller's views on the subject of waivers. "Judy's view was, 'I know Libby. I've known him awhile. The idea that he has to deal with lawyers to talk to me if he wants to is madness. I am not going to accede to the notion that he has waived [confidentiality] unless he tells me, and I believe it.'"

Miller says she always believed that nothing short of a personal, one-on-one conversation would suffice. But while in jail, she read transcripts of Senate testimony on a proposed federal shield law for journalists. Former New York Times op-ed columnist William Safire had touched on the question of a reporter's obligation if a source spoke out first, and Miller began to wonder what she would do if Libby decided to go public. "There might come a time when my source for whatever reason might decide he was more afraid of something else than anything I had to say," Miller said in a December phone interview. "What I came up with in jail was if Libby decided to release me publicly from my pledge," would that mean she was free to testify? She authorized Bennett to approach Libby's lawyer.

Bennett, tasked with trying to get an honest answer from Libby's lawyer about whether or not the waiver was real, disagrees with the purists who condemn all waivers. "You've got to be very careful in this area not to have absolutes," he says, pointing out that there's no simple checklist to gauge whether a waiver is coerced. "It's all nuanced, and it's all fact-specific."

Bennett says the Plame investigation, which involved potential criminal wrongdoing, was "not a strong case to push for the press." He felt Miller's situation was unfair because Libby already had talked to Fitzgerald and disclosed privately, "knowing that these things would ultimately be public, what his conversations were with Judy. I must say that troubled me: why Judy should go to jail when the source himself has disclosed all about his conversation. We're not playing a game here."

While Miller would have preferred a face-to-face visit with Libby, she settled for a personal letter and then a phone call monitored by lawyers. She questioned him, and he assured her that he wanted her to testify. "Consider this the Miller Corollary," Libby wrote her on September 15. " 'It's okay to testify about a privileged communication, when the person you seek to protect has waived the privilege and would be better off if you testify.'"

Miller, who also secured a promise from Fitzgerald to limit his questions to relevant conversations with Libby, says she believes personal waivers "are essential until we have a [federal] shield law to protect us. What I tried to do and think I have done is set a standard that basically says these blanket waivers demanded by your boss or by a special prosecutor are not enough; they're not personal." Without a shield law to protect journalists from revealing confidential conversations, "It's every journalist kind of groping in the dark here," she says. "I went to jail for 85 days. I went the extra mile for my sources. I don't think that makes me a hero, makes me a martyr. It makes me a journalist who kept my word."

Other journalists caught up in the Plame investigation chose a different route. Glenn Kessler, a diplomatic correspondent for the Washington Post, obtained a personal waiver from Libby to give a June 2004 deposition in which he confirmed that, during two interviews, Libby did not discuss Plame; her husband, former ambassador Joseph C. Wilson IV; or Wilson's trip to Niger. Kessler did not reveal the substance of those off-the-record conversations. "From my perspective, I felt I was helping my source without violating any confidential information that took place in those two conversations," Kessler says.

Attorneys handled the waiver negotiations. "In a potential criminal case, you can't call another witness..you have to be very careful about that," says Kessler, who likens asking permission to testify to going back to a source for permission to use information on the record. "In my case, I received assurances that [Libby] was interested in me testifying on the narrow basis I'm talking about. He did not want me to testify about the conversations, which to this day remain off the record."

Kessler cautions against drawing broader conclusions about a changing landscape for reporters. He points out that Fitzgerald, as a special prosecutor, is not subject to Justice Department guidelines that compel reporters' testimony only under narrow circumstances.

Kessler adds that Fitzgerald knew of reporters' conversations with particular sources even before journalists testified. "That's another thing that's been lost," Kessler says. "Fitzgerald knew the names of the sources, knew the dates of the phone calls, had already obtained testimony from the sources about the conversations but was trying to match up the versions of the conversations... It took a lot of discussion with Fitzgerald to reach the right kind of accommodation, but in the end, my conversation remained completely confidential, and yet I was able to assist in his criminal investigation."

Two other Post journalists, Walter Pincus and Bob Woodward, also received personal waivers from sources allowing them to answer questions in the Plame investigation. Woodward testified on November 14 about portions of interviews he had done with three current or former Bush administration officials. In a statement published in the Post November 16, Woodward said he had been contacted by Fitzgerald's office nearly two weeks earlier because one of the officials had told the special prosecutor about an interview with Woodward in mid-June 2003. During that interview, the source told Woodward that Plame worked as a CIA analyst on weapons of mass destruction. "I answered all of Fitzgerald's questions during my testimony without breaking promises to sources or infringing on conversations I had on unrelated matters for books or news reporting past, present or future," Woodward said in his statement.

In an e-mail to AJR, he explained the process this way: "The work on waivers was done by my attorneys. I received full personal waivers orally through the attorneys and then personal waivers in writing from all of these sources who specifically requested that I answer Fitzgerald's questions about any relevant conversations. That I did."

Pincus has encountered waivers in both the Plame and Wen Ho Lee cases. In November, U.S. District Judge Rosemary M. Collyer, seeking to "avoid a repetition of the Judith Miller imbroglio," ordered Pincus to "contact each of his Government sources" to see if they would release him from confidentiality pledges he made while reporting on the Lee investigation.

Collyer denied Pincus' request to have his lawyers contact the sources. It's "very awkward because we both might be witnesses in the Wen Ho Lee trial, and we would have had a conversation," Pincus says. Asked how he handled the calls, he replied: "What I did was tell them I was calling them under a court order, and I read them the court order." One source, "who may or may not be a government source, depending on how you interpret those words," released Pincus from his pledge of confidentiality.

Pincus says most of his confidential sources are people he's dealt with for years, a point he feels has been lost in the outcry over the chilling effect on sources' willingness to come forward. "This is the whole thing: Each one of us has a different relationship with our sources."

Where does this patchwork of reporter-source relationships and philosophies leave the profession? If Libby's case goes to trial, with journalists as unwilling star witnesses, the answer is likely to be a messy one. What would happen to a carefully negotiated waiver when a journalist got on the stand?

"That's the $50,000 question," says David Schulz, one of the media lawyers representing Associated Press reporter H. Josef Hebert in Lee's civil suit. Fitzgerald reached agreements with some journalists and their lawyers to limit his questions to certain sources or particular time frames. In a trial, "that will all become fair game," Schulz says. "Defendants will argue they have a due-process right to get all the surrounding information, which is going to put the privilege and the reporters' First Amendment claim directly in conflict with the Sixth Amendment and the right to a fair trial."

James Goodale, a former New York Times general counsel, sees a "real risk" for reporters who are called to testify in a trial. "Once a journalist gets on the stand, it's going to be very hard for a journalist to say, 'All I'm here to talk about is the waiver'..when you're asked about other sources," he says. Libby's lawyer, tasked with guaranteeing his client a fair trial, could ask Woodward or any other journalist whatever he wants. "Now we have Bob Woodward, the world's greatest source protector..being in a position of unmasking other sources, or he can go to jail," Goodale says.

Freelance writer Vanessa Leggett predicts the defense is "going to be granted latitude to tear into these journalists." Reporters at the trial are "just going to file in there like mechanical ducks at an arcade, and there are going to be some who will fall," she says. "And those who fall will lose points with the public, and then we all lose."

Beyond the trial, prominent media attorneys say the profession would be well-served to try to reach some consensus about the nature of the reporter-source relationship and the propriety of seeking permission to testify. "Until that happens, reporters are going to continually face this issue on an ad hoc, case-by-case basis," lawyer Randy Dryer says.

Attorney Ted Boutrous hopes that when "the dust settles, we'll really be able to take a look at it and maybe come up with some guiding principles going forward... I don't fault anyone in this process from coming to agreements because it has been such a tumultuous series of events."

Boutrous offers three guiding considerations: the risk that the source will feel pressured or coerced, which was one of the primary concerns in the Plame investigation; the need to make sure waivers don't raise other journalistic questions or infringe on the responsibility to publish and tell the full story to the public; and the remaining obligations to confidentiality. "I think there's a danger where journalists are authorized to talk to the government yet still restricted from telling the reader what transpired," he says. "There are First Amendment problems with that." In Woodward's case, the investigative journalist answered the prosecutor's questions but told readers that he had not been released to reveal the source's name publicly.

Unless an agreement between the reporter and the source specifies otherwise, Boutrous posits, the "default position should be when a source goes public or when a source tells a prosecutor the information, the reporter is free to publish the information, broadcast the information, and is no longer restricted."

Some media organizations are instructing their reporters to have more detailed conversations at the outset with sources who request anonymity. Last August, Andy Alexander, the Washington bureau chief of Cox Newspapers, wrote a set of frequently asked questions and answers to guide journalists at the company's 17 daily papers. The FAQ document suggests that a reporter clarify under what conditions a source would release the journalist from confidentiality: "Is your promise of confidentiality eternal? Is it unconditional, meaning that you must go to jail rather than reveal the source? If your source signs a prosecutor's waiver, is that sufficient to release you from your pledge?" (See "Uncharted Terrain," October/November 2005.)

In the late 1980s, the Dallas Morning News adopted a more stringent policy: Reporters are told to "Mirandize" confidential sources to inform them that their names could be disclosed under unusual circumstances. The policy states: "Unnamed sources must be aware that in rare instances (which, to date, have never occurred at The DMN) they could be identified if lawsuits involving coverage were pursued and efforts to keep them confidential were exhausted in legal disputes (known as 'Mirandizing' a source). Discuss the sources and the situation with your supervising editor before any promise of anonymity is made. Remember that you are not making a personal commitment to the source. You are acting on behalf of the newspaper."

If a source does not agree to being identified in these unlikely instances, "We probably wouldn't use them," says Editor Bob Mong. "In most cases, the sources don't do that. They say, 'Sure. Under those circumstances, if you go to those lengths to protect me, I'm fine with it. I just don't want to be identified now.'..

"There has to be a sense of proportion here what is the nature of the story? and look at it case by case by case. But you have to have some kind of bedrock principle out of which you operate," says Mong, who shared the News' policy with then-Time Inc. Editor in Chief Norman Pearlstine after Time turned over Matt Cooper's notes and e-mails to Fitzgerald. "It gets at the importance of negotiating with sources; it gets at the reasonableness of most sources and the seriousness of sources. And those that are committed to getting the story out, I think they understand this."

When Floyd Abrams represented Myron Farber in 1978, some of the Times reporter's sources were called to testify and asked whether they had a confidential relationship with the journalist. "Some said no," Abrams recounts. "That wasn't true. What was the obligation of Mr. Farber? They were then asked, 'Do you have any problem with Mr. Farber testifying personally?' Of course they said no." Farber, invoking a reporter's privilege, refused to confirm or deny the identities of any of his confidential sources.

The Farber case was very much on Abrams' mind as he worked with Miller, particularly after what he regarded as an ambiguous conversation with Libby's lawyer, Joseph A. Tate, in the summer of 2004. Abrams asked whether the waiver Libby had signed was coerced. He says Tate replied that of course the waiver was coerced. It was coerced in the same way his client was coerced not to take the Fifth Amendment; it was clear Libby could not stay on as the vice president's chief of staff if he refused to sign the form. "When the conversation was over, and I started thinking about the conversation, it occurred to me that the one thing Mr. Tate could probably never say to me is [Libby] wants her to shut up because that could be obstruction of justice," Abrams says.

Tate disputes Abrams' account. In a September 16, 2005, letter to Fitzgerald, Tate wrote that he assured Abrams at the outset that Libby's waiver "was voluntary and not coerced and [Miller] should accept it for what it was. [Abrams] assured me that he understood me completely. From these discussions I understood quite clearly that her position was not based on a reluctance to testify about her communications with Mr. Libby, but rather went to matters of journalistic principle and to protecting others with whom she may have spoken." (Tate declined to comment on the letter, which the New York Times posted on its Web site.)

So when does a "yes" from a source really mean yes, and when does it really mean no?

Abrams concedes that sometimes a waiver is genuine. The challenge, he says, "is deciding which purported waivers are real and which are not. That is especially difficult in a situation in which the person who allegedly is waiving could be subject to criminal prosecution...

"There is a great reluctance on the part of journalists..to pick up the phone and sort of badger sources into relieving them of the promises they made, especially at the time that the promises are most important, when the source is in trouble," Abrams says. "This is a very difficult and very delicate area."

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