In defense of telling secrets

May 28, 2006

Recently I got a call from a friend, Paul Moore, the ombudsman for the Baltimore Sun, who wanted to talk about the Balco affair. Two investigative reporters from the San Francisco Chronicle were resisting demands that they reveal who leaked testimony to them from a federal grand jury looking into steroids use by pro athletes. Balco is the acronym for Bay Area Laboratory Co-Operative, a nutritional supplement company that distributed performance-enhancing drugs.
Based on the leaks, the reporters wrote sensational stories in 2004 about the use of such drugs by star ball-players, which triggered congressional hearings and a long delayed overhaul of drug policies in Major League Baseball.

Now the reporters are being subpoenaed to tell who leaked the grand jury testimony, which, by statute, is supposed to be secret. If they refuse, as they say they will, they could be jailed.

It’s important to note that the subpoenas come in the context of unprecedented pressure on journalists to give up sources in both criminal cases and civil lawsuits. They also arise in the context of an unusually secretive administration in Washington, which has declared off-limits mammoth categories of information ranging from the strategically sensitive to the politically awkward.
So the context offers good reason to bridle at secrecy claims. Still, my initial reaction wasn’t sympathetic to the reporters. My first point to Paul was that the prosecutors’ insistence on grand jury secrecy isn’t just another instance of politically-motivated press-bashing; it rests on a long established courthouse principle. My second point was to wonder about the witnesses who believed they were testifying in confidence. Do they have any rights? Were they wronged when their supposedly secret testimony was made public?
So, it seemed to me, before we get on our hind legs in defense of the Chronicle reporters, we should confront these objections: that grand jury secrecy is worthy of respect — whatever the specific information it conceals — and that the people who testify before grand juries deserve to have their identities withheld, since that was the agreement under which they gave evidence.

The Chronicle’s executive editor, Phil Bronstein, has argued that the law mandating grand jury secrecy applies only to people who leak testimony, not to the reporters who publish those leaks. That may be true as a legal matter, but as an ethical one it seems squirrelly and beside the point. If the testimony truly ought to be secret as a matter of public policy, whoever aids the process of improper disclosure is doing something wrong.

But should it be secret in the first place? That’s the key point I should have addressed and didn’t. Isn’t this entire tradition of grand jury secrecy a questionable exception to this country’s tradition of public justice? Behind closed doors, grand juries are notoriously subject to manipulation by prosecutors. Thanks to their secrecy they hear damaging testimony without any of the usual adversarial checks that ensure some measure of veracity in open court. Targeted people aren’t represented by counsel, incriminating evidence may never be challenged  and frequently fails the test of real trial in open court.

Grand juries are, in short, hugely powerful, carefully veiled law enforcement machines on which tradition confers an unconscionable exemption from the routines of accountability. It’s true that the Balco leaks aggravated this tendency, by making public uncontroverted testimony. But that argues for a more fully adversarial process, not a sealed Star Chamber.

So do the people who testify before grand juries deserve concealment? I must say I’m baffled by the argument that when people testify in a jury trial they’re identified, but if their testimony is instrumental in bringing about that trial they can speak in secrecy. In a public system of justice, their testimony should be public  unless they are extraordinarily vulnerable to personal harm.

The Chronicle’s Balco reporting was justified by the record of connivance and hypocrisy with which organized sport has enabled its most revered stars to evade sensible restrictions on drug use. When top athletes are copping to behavior that they have publicly repudiated they are, in my view, abusing a dubious tradition of grand jury secrecy by presuming that their confessionals should benefit from its protections.

Secrecy has its place, but only practiced sparingly and judiciously, not through policies of banket concealment. Embargoing publicly important information is always a dangerous practice, and the reporters who defy such bans deserve our thanks, not our sanctions.

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