The need for creating a federal press shield law

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OFF THE RECORD: THE PRESS, THE GOVERNMENT, AND THE WAR OVER ANONYMOUS SOURCES

By Norman Pearlstine

Farrar Straus Giroux, $25, 282 pages

REVIEWED BY JAMES SRODES

As Norman Pearlstine argues in "Off the Record: The Press, the Government, and the War over Anonymous Sources," the dependence of reporters on confidential purveyors of information has now collided with heightened government efforts to limit the public's right to know. Important matters are now being masked as national security issues, which really are uncomfortable political controversies.

Mr. Pearlstine is one of the true stars of American journalism, make no mistake about that. Trained in the law (University of Pennsylvania), he climbed the ladder of local and then national publications, most notably rising to executive editor posts at the Wall Street Journal and Forbes magazine, and ending up with an 11-year stint as editor in chief of Time Inc., the 154 magazine division of Time Warner Inc. Most of the Pulitzer-type awards available to financial journalists already line his mantle.

But right now Mr. Pearlstine probably couldn't get a cup of coffee in most American newsrooms because he is known as the guy who caved in under pressure from the federal special prosecutor in the Scooter Libby case. His specific sin is that he turned over a Time reporter's notes of an interview conducted under off-the-record ground rules of confidentiality.

Mr. Pearlstine says what the Libby case proves is the need for a set of one-size-fits-all rules shaped into a federal press shield law. The District of Columbia and 49 states already have some version of a protection of journalists and their sources. But a federal shield supposedly would cover disputes when the information provided by a confidential source either violates a specific criminal law or threatens national security, or both. What the Libby case shows however is just how nearly impossible developing such a fixed standard would be.

In July 2003 Joseph C. Wilson IV, a retired career diplomat, embarked on a round of public criticisms of the Bush Administration's decision to invade Iraq. Appearing on "Meet the Press," in an interview with The Washington Post, and in a signed article in the New York Times, Mr. Wilson stated that he had been sent by the Central Intelligence Agency to Niger in 2002 and could find no evidence that Iraq had tried to buy uranium for weapons there. Bush Administration officials reacted the way the powerful have since the dawn of time " they tried to discredit the messenger.

It is generally believed that the controversy exploded soon after when Robert Novak, in his column which is syndicated in more than 300 newspapers, reported official sources' claims that Mr. Wilson's trip to Niger had first been suggested by Valerie Plame, his wife and a CIA analyst on the weapons of mass destruction issue. But instead of calling into question the propriety of Ms. Plame's actions or the anti-Bush bias of the couple, the outing backfired on the White House. The story quickly turned into a frenzied effort to tie Vice President Dick Cheney, his aide I. Lewis "Scooter" Libby, and White House senior adviser Karl Rove to the leaks. Quicker than you could say "Watergate" the hunt was on to bring down the president's top advisers.

Time reporter Matt Cooper was one of those who reached Mr. Rove and Mr. Libby for comments on the burgeoning scandal; indeed Mr. Cooper reported on the Plame-Wilson story for the publication's website three days before the Novak column appeared. Then Mr. Mr. Cooper sent a widely circulated and hardly confidential email to his New York editors. Mr. Rove, he said, had spoken to him "on double super secret background." The thrust of Mr. Rove's remarks was to warn Cooper not to relay too heavily on Mr. Wilson's assertions.

Federal special prosecutor Patrick Fitzgerald focused on Mr. Libby. His conviction, prison sentence and hefty fine imposed earlier this year were based on charges he perjured himself and obstructed the investigation, charges which while serious enough, did not directly address the first issues of the case.

But about his decision to hand over Mr. Cooper to the courts Mr. Pearlstine does make some valid points. Journalists are citizens and not some priesthood that is above the law. When a court finally demands compliance and remedies are exhausted, then the journalist and his publisher must submit or face the criminal penalties used to compel them. He concedes that right away but pays no mention to the fact that sources who demand anonymity are citizens as well. Too often the demand for confidentiality is merely a convenience or, worse, masks an agenda that taints the information.

Mr. Pearlstine gets into some laughable territory when he tries to set rigid definitions about what is and what is not meant by the phrase "off the record" and its various permutations. He then twists around and argues that because Mr. Rove's conversation with Mr. Cooper was on double super secret background, it meant that he actually had not been a confidential source at all since those were not the right, presumably magic, words

But one cannot fault him for wanting a firmer set of rules to protect journalists " print, broadcast, and the new rambunctious bloggers too " from a ubiquitous push to increase official control over what the public learns by way of news reporting out of our various levels of government. But turning the matter over to the U.S. Congress does not fill one with confidence.

Perhaps the solution lies with the U.S. Supreme Court, whose current stance on the matter is not nearly as well known as New York Times v. Sullivan is in outlining press libel rules. Branzburg v. Hayes was a 1972 decision by a 5 to 4 vote that held that the public's interest in law enforcement outweighed a reporter's need to protect confidential sources. Journalists (and their sources), like all citizens, can be compelled to testify in criminal cases.

But in his dissent against the majority in Branzburg, Justice Potter Stewart proposed a three-part test to decide whether courts could compel a journalist to testify: The government must show probable cause that the information sought is relevant to a specific violation of law; that the information cannot be obtained by alternative means and that the government can demonstrate "a compelling and overriding interest in the information."

Under that test, and given that Mr. Fitzgerald had received the names of the leakers from other sources, it is hard to see why Mr. Cooper or New York Times writer Judith Miller should have been compelled to testify. It is equally clear that both reporters and their editors should have been less than willing to exchange promised protection to what at root was a sleazy attempt at a political hatchet job.

James Srodes has been a Washington journalist and author for the past 40 years.