A federal judge has told two reporters from the Chron that, pending appeal, he plans to send them to jail for up to 18 months (the life of the grand jury) to force them to reveal who leaked secret grand jury information to them in the BALCO baseball steroid investigation featuring the testimony of S.F. Giant home-run hitter Barry Bonds, whose testimony before an earlier grand jury has given rise to a perjury investigation being conducted by the U.S. Attorneys office here.
Perhaps it's a bit too easy to say, "Bad government, going after good reporters like that, and shouldn't this be deemed a violation of the First Amendment's freedom of the press." Absent a federal reporters shield law, the judge is required to order the reporters to divulge the information they've collected and jail them for contempt of a court order when they refuse.
The question is whether Congress should enact a shield law, as many states have. The stakes may be different as between the states and the nation. The nation may see its national security at stake, while it is hard to imagine the security of a state being threatened. It's hard to see the nation's security at stake from what a reporter gathers, either, come to think of it, unless the reporter knows of the next impending Pearl Harbor or 9-11 attack and isn't reporting it but the government finds out anyway.
Government is concerned with protecting the secrecy, and integrity, of some of its more sensitive processes, such as grand jury investigations. Thus it wants to be able to go after leakers, whistle-blowers, and the reporters who find out and report what these folks have said.
Some leakers and whistle-blowers perform a valuable public function. Deep Throat, the informant who provided the key information to Washington Post reporters Bob Woodward and -- Bernstein that resulted in the Watergate scandal that forced the resignation of Pres. Richard M. "I'm not a crook" Nixon, was the No. 2 guy at the FBI, Mark Felt. We wouldn't have wanted the reporters to go to jail there because we liked what the leaker was leaking. He was burning a crooked administration that was subverting the nation. He helped save the country. So the rule: good leaker, no jail for reporter.
But suppose the leaker, a government employee, is a crook himself? Someone who is using the power of public office, and the secret government information available, to destroy enemies? Innocent enemies? For example a police detective "leaks" information that a suspect has confessed to the latest terrible crime that has everybody all upset. Only it turns out the report is false and only designed to blacken the reputation of the subject.
Oh, no government employee would do that, you think. But that was the belief held by many people in the Plamegate scandal, in which it was believed that the White House leaked the fact that Ambassador Wilson's wife, Valerie Plame, was a covert CIA employee, in order to punish Wilson for embarrassing Pres. George W. Bush by contradicting his excuse for invading Iraq by claiming that Saddam Hussein had been collecting yellow-cake, a precursor chemical (a uranium isotope) to make nuclear weapons. It turns out that the leaker wasn't the White House but the State Department. Or one of the leakers. New York Times reporter Judith Miller went to jail for some 87 days before agreeing to reveal the leaker, after getting I. "Scooter" Libby's permission to reveal that he was her source. The State Department's Richard Armitage seems to have been an even earlier leak. Libby's leak seemed to have been a punitive leak that destroyed the career and relative safety of a CIA intelligence officer working to protect the country. That was a bad leak.
Here the equation changes and the rule seems to want to be: bad leaker, no reporters privilege. Why? Because why should reporters, and the law, be allowed to protect evil lying leakers.
Should a reporters shield law protect only certain kinds of leakers, good, not bad? Truthful, not lying? Suppose the leak contains some of each? It seems to me that a blanket rule is going to have some bad consequences that we can anticipate in advance.
Sen. Arlen Specter, Chairman of the Senate Justice Committee, says that he plans to introduce federal legislation to protect reporter from having to reveal sources soon. I wonder how he proposes to address the problem of the lying leaker who harms his victim.
The best real life example of this that I can think of is the Wen Ho Lee case, where the government scientist was suspected of revealing atomic secrets to China, only he wasn't. He was prosecuted, jailed, and held in an isolation cell for months before the case fell apart. In the meantime, some government investigator had leaked that he did all sorts of nefarious things indicating guilt, but these claims were shown to be lies.
Mr. Lee sought to find out who the leaker was so he could sue him. Didn't he have a right to receive compensation for the injury he'd suffered? The government settled for a lot of money after Lee homed in on the leaker.
As to the question whether the distinction between protected and unprotected sources should be whether the leaked information is truthful or not, this characterization presents problems of its own, but perhaps not insurmountable problems. In the Lee and Plame cases, and the information leaked was factually wrong. The reporters were being used as tools by the leakers, just as the reporters were using the leakers as tools to write stories that turned out later to be false, although the reporters, presumably, weren't aware of this at first. Suppose the reporters didn't much care whether the report was false, such as in a case where a really unpopular person was being condemned, such as an alleged Communist or child molester. Or an Al Qaeda suspect.
One of the problems is that you can't always tell truth from lies at the beginning of an investigation. Yet the demand is to force the reporter to reveal information, whether true or false, before this can be told.
The government may hope to use the information to obtain more information so this can be determined.
This is getting complicateder and complicateder.
We'll have to ponder it some more, won't we.