Published in Journal of Media Ethics, Vol. 2, Issue 2, April-June 2017. Expanded version appeared in After Snowden, Privacy, Secrecy and Security in the Information Age, Ronald Goldfarb, ed. (NY: St. Martin’s, 2015.)
ABSTRACT
Obligations and loyalties that develop between reporter and source both enable and enrich—and impede and corrupt—the flow of publicly significant information to wide audiences. Source relations are at the core of journalism practice, yet they are a thinly developed area of journalism ethics, and the digital era emergence of what are called here “disruptive sources”—arising from outside the normal nexus of authoritative informants, often disclosing information that undermines the credibility of that nexus—suggests a re-examination is warranted. The recent wave of prosecutions of disruptive sources in the United States suggests that confidentiality pledges—even buttressed by shield laws—may protect journalists, but do little to protect sources. What’s needed is a stronger ethical commitment among the news media to stand by truthful sources who break the law in the service of public illumination, and whistleblower laws that allow sources who violate secrecy provisions to defend their actions as socially beneficial.
As a practical matter, news media—whatever their sense of social mission, their standards, their technological savvy and market health, their legal shields or constitutional privileges—depend, first and foremost, on their sources. That dependency means the press can’t be any better, stronger, braver, more richly informed, or more dedicated to broad public purpose than the people who swallow their misgivings, return the phone call, step forward, and risk embarrassment or reprisal to talk to reporters. Less obviously, that dependency also means the press is susceptible to pressure and manipulation by sources whose collaboration is indispensable to the routine coverage of public policy and institutional performance, and who become an offstage constituency that the conscientious journalist must be ever mindful of when deciding what to report and how to report it.
Hence sources, a multiheaded beast. The source dimension embraces the best and worst of contemporary journalism—the press as sanctuary and independent public servant, and the press as self-serving industry tilted toward the powerful, its journalists preoccupied with maintaining the working relationships on which their own careers depend. Those two poles of source relations have been apparent in marquee episodes of both courage and malfeasance since the new century dawned, from the Valerie Plame-Joseph Wilson matter more than a decade ago to the most recent spate of high-tech whistleblowers, exemplified in the continuing Edward J. Snowden affair.
The upshot of the discussion offered here is that the whole subject of obligations to sources—a chronically neglected area of journalism ethics—is a richly convoluted and deeply perplexing matter: It telescopes the unavoidable incompatibilities reporters must negotiate between workplace necessities and public service; promotes compromises in which the reporter’s signature duty—to unearth and bring to light publicly significant information in the service of a self-governing polity—may take a back seat to expediency and careerist calculation; and engenders a powerful institutional undertow that deepens the vulnerability of a class of invaluable sources whose influence is truly disruptive. In some cases, efforts by the news media to protect their sources work against the public interest by shielding high-level wrongdoing from exposure.
Now, in the Wikileaks era, we’ve seen a greater role played by what are called here disruptive sources. Disruptive sources challenge and defy the routines of normal journalism. These sources—Chelsea (formerly Bradley) Manning, Julian Assange, and Edward Snowden are digital era exemplars, Daniel Ellsberg their linear forebear—are disruptive in a number of ways: They’re not on the newshound’s roster of what Mark Fishman called “authorized knowers,” don’t drink with the beat reporters, aren’t part of the approved social nexus out of which the standard coverage of their realm of occupational knowledge normally flows. They may have no continuing benefits to bestow, no implied promise of a future flow of valued intelligence. (Indeed, their value as informants may be self-liquidating, consisting of one-time data dumps.) They are disruptive too because they may have access to alternative channels through which to publish their information, and that access is an institutional threat to the centrality of the news media as the principal conduits of big news. The very information they proffer is a disruption as well, both because it’s credible and because it challenges—explicitly or not—whatever reporters had previously been telling the public. Hence, their offerings raise serious questions about the adequacy and trustworthiness of the information the media had been serving up. (Consider how many years of Vietnam-era reporting were exposed as wrong-headed and credulous once the Pentagon Papers were published.) And, of course, because the information challenges the received wisdom, it undermines confidence in the integrity and values of the dominant institutions that the media are supposed to be holding accountable—and challenges, for instance, the degree to which secrecy classifications serve any genuine national security interests or are, instead, fig leaves to ward off exposure and bureaucratic embarrassment.
Because the source is an outsider, not a member of the usual social nexus of relied-upon informants, it isn’t likely he or she will receive much in the way of protection or indulgence if the information provokes official displeasure. Instead, the recent class of disruptive sources has been greeted with disquieting ambivalence by the same news media that benefit from their information. Typically coverage praises, in passing, the public value of the material the informants disclose, while foregrounding questions about their motives, psychological makeup, personal integrity, and the harm they might be doing to legitimate security interests of the state. Whatever actual protection the media might offer their sources is generally confined to the terms of reporter privilege, contained in various shield laws that enable journalists, under limited circumstances, to resist legal pressure to disclose the names of informants with whom they have confidentiality agreements. The reporter’s silence, even if upheld by increasingly skeptical courts, won’t necessarily protect the source. In only one of the current crop of cases in which news sources were charged under the Espionage Act during the George W. Bush and Barack Obama administrations—the case of former Central Intelligence Agency employee Jeffrey Sterling—have prosecutors pushed hard to force a reporter to break a confidentiality pledge and identify a defendant.
So the question becomes whether the media can or should generalize their social role, moving to something broader and more assertive than simply keeping reporters safe: A more sweeping set of duties as facilitator and even guardian of the flow of newsworthy information, defender of the ability of individuals to go public with significant knowledge that deserves wide exposure. Arguably, what needs defending is not just the reporter’s entitlement to keep silent, but the source’s right to speak, independently of the right of the news media to report what they say. It makes little sense for the media to confine their protective response to withholding the identities of valued sources when those identities can readily be learned by law enforcement and the only question left to debate is how harshly the sources themselves should suffer in reprisal.
Who cares about sources anyway?
The idea that reporters have some general duty to protect their sources is articulated only vaguely, but is widely held. Jack Shafer, media writer for Politico, referred to it in a 2005 column he wrote during the unraveling of the Central Intelligence Agency leak investigation, which drew evidence from a number of journalists, as we’ll discuss below. “If protecting sources is paramount,” Shafer wrote, “why don’t more journalists go to jail?” It’s a good question, but it rests on a shaky premise. The fact is that source protection is miles from being a paramount concern for journalists. Apart from the narrow matter of upholding confidentiality agreements, obligation to sources is a poorly developed area of press ethics. The well-being of informants, and the ways that the reporting they nourish may rebound on their lives, are things that journalists worry about rarely, if ever.
One of the best known—and most jaundiced—formulations of the relationship between journalist and source suggests that the reporting enterprise is essentially predatory. That proposition was advanced by Janet Malcolm in her 1990 Malcolm, J. (1990). The journalist and the murderer. New York, NY: Knopf/Random House. [Google Scholar] book, The Journalist and the Murderer: “Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible.” Malcolm’s book focused on the relationship between author Joe McGinniss and the U.S. Army Special Forces doctor, Jeffrey MacDonald, who had been accused of slaughtering his wife and two small daughters in 1970. McGinniss befriended MacDonald and remained privy to the inner workings of his defense team even after, by his account, he became convinced that MacDonald was guilty of the harrowing crimes. A jury convicted MacDonald and he sued McGinniss, claiming the author had wronged him by pretending to be his friend. (After a lengthy trial jurors couldn’t decide, and MacDonald received a $325,000 out-of-court settlement.) The journalist, Malcolm observed, “is a kind of confidence man, preying on people’s vanity, ignorance or loneliness, gaining their trust and betraying them without remorse.”
Even sophisticated sources are susceptible to the charms and blandishments of reporters, and may wrongly believe that because the journalist is friendly he or she is also a friend—that is, will act with the source’s best interests in mind. In 2010 U.S. Army Gen. Stanley McChrystal lost his job as commander of allied forces in Afghanistan after Rolling Stone magazine profiled him as “The Runaway General.” In the article, freelancer Michael Hastings, who had spent a month with the general and his staff, quoted McChrystal’s top aides—who claimed to be reflecting his views—speaking scathingly about their civilian bosses, notably Vice President Joe Biden. The journalist later expressed surprise at how forthright his sources had been.
Garden-variety sources pose different problems. Often they are vulnerable and unsophisticated people with outsized expectations of what publicity will do for them. They may believe that talking to the press will make them celebrities and immunize them to payback, even when they say things that are certain to infuriate people who are in a position to do them harm. Encouraged by the affable reporter, they may share observations that will make them look ridiculous —as the journalist knows. One case used in ethics classes involves a woman in a small New England town in the early 1980s who was the subject of one of those perennial “first baby of the year” stories in the local paper. As it happened, she was an unwed mother, welfare-dependent, who prattled on to the reporter about how happy she was that her toddler now had a sister, and how, since she could rely on the dole, she really had nothing better to do than have another baby. The happy-face story hit the wires, and the delighted mom became a calendar-girl among Welfare Queens, vilified nationally on talk radio as a social parasite.
Should somebody have nudged her, midway through her idiotic —although revealing— reflections, and pointed out that she was soaking herself with gasoline in the presence of a professional with a lighted match? True, the citizenry had a right to know where its tax money was going. However, if source protection were truly a journalistic duty, the answer might well have been that the reporter, since she understood better than the source did the possible impact of publishing the comments, had some obligation to offer her some kind of heads-up. In a general sense, reporters might feel obliged to caution people they were interviewing when they were saying things that might well hurt them, that the story they were helping create was unlikely to cure the conditions they were eager to deplore, that they were taking part in a process whose consequences were unknowable—and, above all, that they were on their own.
If source protection were understood to be a duty, vulnerable informants wouldn’t have to ask for anonymity, and reporters wouldn’t be instructed to agree to confidentiality only when sources won’t talk otherwise. Instead, reporters are admonished to name sources whenever possible. The reasoning is sensible: Information from named people is more credible and verifiable, and identified sources can be held accountable for falsities. But if confidentiality is plainly in the source’s best interest, shouldn’t the reporter suggest it? True, concealment isn’t the reporter’s job, and finding information is hard enough. But it’s reasonable to ask whether the superior knowledge the reporter has of the likely consequences of the source’s comments confers an obligation on the journalist. Isn’t minimizing harm an important value?
The fact is, source protection generally becomes an issue only with canny, high-level officials who use the press as another lever of influence and who demand confidentiality. Their actual need for protection from reprisal may be dubious, but their continuing cooperation is of great value to the journalist. So in a turnabout of Marx’s principle, they get protection not on the basis of their needs, but on the basis of their abilities. Of course, a thoroughgoing concern for the welfare of sources could constrain reporting in ways that would be paralyzing, and journalists can’t be both zealous reporters and public relations advisers. But it’s deeply ironic that a profession that’s supposed to have special sensitivity to the underdog routinely follows practices that ignore—when they don’t aggravate—the plight of the most vulnerable people who might benefit from its help.
Instead, the lore of journalism doesn’t have much room for sources. It extols the plucky reporters, sometimes their grumpy editors, on occasion even their publishers. The fact that the overwhelming majority of sources are well-placed officials who feed the media because it’s their job makes them unlikely heroes. Beyond the rituals of normal news, the ability of the news media to act freely and independently of governmental or private power—when they’re doing what we most fervently demand of a free press—is meaningful only in an environment where sources have information and are willing to disclose it. Press freedom, in that respect, is nothing more than source freedom, one step removed. The right of a news organization to tell what it learns is a hollow abstraction without the willingness of news sources to tell what they know. No political regime, no matter how authoritarian, would need to censor a news organization that had no independent sources and was doing nothing but publishing reports that were officially sanctioned.
Considering how indispensable knowledgeable sources are, it’s remarkable how little affection they get and how flimsy the protections are that anybody claims for them, apart from the disputed right of reporters to keep source identities from the gaze of law enforcement. The rash of prosecutions that began toward the end of the Bush Administration and intensified under the Obama White House has been conducted under the 1917 Espionage Act. But it has pursued sources, not spies, targeting individuals because they provided newsworthy information destined for public illumination, not priceless secrets intended for foreign adversaries. Still, their plight has triggered little more than intermittent pleas for leniency rather than principled opposition based on the public benefit the leakers intended or, indeed, created. That, in spite of the undisputed reality that the informants gave news reporters secret information about governmental improprieties and illegalities that made headline news worldwide.
The media’s reticence has several causes. One is that the assault on leakers has left the press itself largely untouched. As a matter of policy rather than law, the Espionage Act is never aimed at the media organizations that make the leakers’ secrets public. That restraint is nonsensical, in that it’s the act of publishing—not the handing over of the information to a reporter—that irreversibly destroys its secrecy. Indeed the media organization’s willingness to accept and publish leaks is the necessary precondition for the disclosures in the first place. But prosecutors, for the most part, are quite happy to leave the media alone. They and the media share the belief that even if an informant belongs in prison for disclosing secrets, the media organizations that actually publish them should be free to collect their prizes. As long as prosecution agents can identify the informants through wiretaps and snooping they’d just as soon not hassle reporters. As an unnamed administration official told Lucy Dalglish, then head of the Reporters Committee for Freedom of the Press (and now dean of the University of Maryland’s Philip Merrill College of Journalism), in 2011: “We’re not going to subpoena reporters in the future. We don’t need to. We know who you’re talking to.” As mentioned, only in the case of former Central Intelligence Agency employee Jeffrey Sterling did a journalist, New York Times national security reporter James Risen, face government demands—and the threat of a contempt sentence—over his refusal to say whether Sterling was a source for Risen’s 2006 Risen, J. (2006). State of war: The secret history of the CIA and the Bush Administration. New York, NY: Free Press. [Google Scholar] book about a blown U.S. intelligence operation in Iran. (Risen kept silent; Sterling got three and a half years anyway.)
Again, it’s worth pointing out that as a matter of moral logic—which asks for responsibility to be assigned where it belongs—ignoring what the media do with the leaked information is absurd. Whatever the current dictates of First Amendment jurisprudence, if publishing government secrets actually causes harm, rational public policy would demand that those responsible be called to account—whether they’re a former military intelligence worker or a mighty news organization. That would seem to be precisely what laws protecting national security are for. By the same reasoning, if the publication in dispute produces, on balance, a public benefit, nobody should be punished—neither the publisher nor its source, even if classification stamps were ignored and secrecy rules violated.
However, disruptive sources have rarely been able to rely on the media for support and protection. The whistleblower who gave The Cincinnati Enquirer access to Chiquita Brands voicemails for the newspaper’s 1998 expose of company wrongdoing in Central America was identified by the Enquirer’s parent, Gannett Co., fired, prosecuted, and stripped of his license to practice law. Former Brown & Williamson scientist Jeffrey S. Wigand was portrayed as a brave and tortured man of principle determined to expose the lethal lies of cigarette makers in Michael Mann’s 1999 movie “The Insider,” but he was sold out by the media organization, CBS News “60 Minutes,” that he was trying to help. In the Pentagon Papers case, after The New York Times prevailed before the Supreme Court on the narrow issue of prior restraint, its source, former RAND Corp. analyst Daniel Ellsberg, was left to his own devices to fight the federal prosecution that continued another two years. In the private sector sources face enhanced surveillance and the proliferation of so-called nondisparagement clauses, which bind that most valuable of potential informants—the disgruntled former employee—from sharing critical observations to the press. Even after legislation such as the Sarbanes-Oxley financial reforms foregrounded enhanced protections for whistleblowers, the results were meager. In 2011, investigative business reporter Michael Hudson found 63 cases of former employees at 20 financial houses who said they were fired or demoted for reporting fraud or refusing to commit fraud; only four cases had been reported in the news media.
The practical realities of serving as an unauthorized source have changed too, generally for the worse. Looking at digital era news practices, it’s apparent the overall environment for sources has deteriorated, and potential informants have better reason than ever to keep silent. Consider the channels through which reporters and informants communicate. News organizations routinely post email addresses for their reporters. However, who believes that an e-mail to a journalist is private in the way a phone conversation was a decade ago? Can reporters even safeguard their own electronic correspondence and keep it from their bosses? And how many proprietors would pay to fight to block an outside litigant’s attempt to see that correspondence—even one revealing major illegalities—if the source had violated a gag agreement he or she was pressured to sign on their way out the company door?
To be sure, not all sources are created equal, and they aren’t treated equally either. Many informants are paid conduits, sophisticated in using, managing and gulling journalists. They’re seasoned public relations pros who understand the rewards and risks of media interactions. Often they’re officials who are in the game, who know how to negotiate terms beforehand, and who know that their continuing value to the reporter will usually guarantee they’ll be handled with consideration. As they are.
The source who’s imperiled isn’t the Special Ops commando, it’s the citizen soldier, the average Joe or Jane who has significant information the public should hear, but whose collaboration is a one-off thing. This person won’t ever be on any reporter’s speed dial. This is the source who steps from obscurity off a cliff into public notoriety, hoping the landing will be soft, maybe expecting that publicity will confer protection, believing that speaking out is the right thing to do. Often they are vulnerable and unsophisticated people with outsized expectations of what publicity will do to their lives. They may believe that talking to the press will make them celebrities and immunize them to revenge, even when they say things that are certain to infuriate people they shouldn’t anger. These sources aren’t honored in the press ethics books, and sociologists don’t bother studying how often they get hurt. The absence of empirical data about the experiences of different categories of news sources is remarkable, given that journalists routinely make judgments partly on the basis of how they imagine their editorial decisions will affect the individuals whose collaboration they’ve relied on. Yet, reporters know almost nothing about the aftermath, and neither the media nor the academy cares enough to find out.
Still, heedless of that indifference and of the risks they run, sources continue to come forward. Many, no doubt, are motivated by the wish to settle scores, and hope that the coverage they’re spurring will rally support for their causes. However, some understand that talking to the press is what a responsible, thinking, caring person does. It’s an action that belongs among the irreducible elements of being a citizen, alongside the right to vote and the duty to give evidence in court. For all that, it’s not anything that’s routinely included in civics books—at best, textbooks will mention how important it is to read the news, not participate in creating it—and whatever training in the rudiments of citizenship our educational system offers almost certainly omits any mention of it at all. Instead, we’re left with the media misrepresenting the news as something they produce unaided so they can continue to brandish the First Amendment as if it’s a private license issued for their benefit, ignoring the fact that without sources the press freedom clause is a dead letter.
Sources and beats
Indeed, the untutored civilian who steps forward with revelations of great public import is the exception to the normal rituals of reporter-source interaction from which routine news flows. Those interactions, more often than not, take place in the context of beats. And the logic of beats encourages a co-dependency in which the journalist must make tradeoffs between news values and the demands of the network of source relationships that is indispensable to the production of normal news. The upshot is that reporters develop powerful reasons of self-interest to be, if anything, overly protective of valued sources. Hence, a paradox: The lack of concern for source welfare is a problem when it comes to ordinary citizens and whistleblowers; but excessive concern for the wellbeing of professional sources is corrupting.
Some years back a reporter with a small news organizations who was posting to an ethics site I took part in wrote in with a dilemma that will be familiar to many reporters: A colleague of hers on the police beat had learned of minor wrongdoing involving the town’s cops. But publishing a story on it would come at the cost of the reporter’s continued access to useful sources within the police department. Worse, she said, her state’s laws allowed police to withhold practically all information about investigations that haven’t yielded arrests. “This means that reporters have to keep up a good relationship with officers in order to get anything on unsolved crimes, no matter how small or how serious,” she wrote. So the colleague had to choose between sitting on a perfectly newsworthy story that would embarrass the sources she relies on and destroying her effectiveness on the cops beat.
That conundrum is more than an occasional problem for a small-town reporter. It has been institutionalized into a routine reality traditional journalists face, thanks to the still-robust reliance on beats to cover the country’s most powerful institutions. The upside of the beat system is clear. It encourages journalists to develop a depth of expertise so they can report knowledgeably on topics that require focus and specialization to understand and explain. But beats also encourage reporters to get chummy with the people who control the information their coverage depends on, so they can call on those sources and secure necessary information from them. And that’s where the problems begin. The reporter’s success in covering his or her beat depends on the cooperation of the people being covered—and not just their knowledge, but their good will too.
If you deliberately set out to devise an arrangement less conducive to adversarial reporting, it would be hard to beat beats. And indeed, bird-dogging the powerful wasn’t the reason the beat system arose in the late 19th century. Instead, beats solved two problems: Ensuring reliable conduits for official information to flow from leading institutions of government and business, and establishing consistent, low-cost sources of raw news for the burgeoning, mass-circulation press. Under the beat system, reporters turned up at appointed times and received the news of the day. The notion that good coverage required deep understanding and specialized expertise came only later. What came first was the wish for a stable network of cooperative relationships, which would work to the advantage of the subjects of coverage, news organizations and, to some degree, the public.
Of all the improper influences on the flow of publicly significant news—from commercialism to deliberate disinformation—one that is rarely mentioned for its corrupting effect is the beat system. The wisdom of beats rests on the idea that journalism can flourish in a setting where professional success utterly depends on the continuing cooperation of the same people that the journalist is supposed to badger, provoke, expose and, in sum, hold accountable on the public’s behalf. Why be surprised that journalism is so often timid and reverential to sources? The miracle is that journalists are ever tough and courageous, that beat reporters do defy their sources. But that’s a mark of their own guts and ethical maturity, and of the presence of determined informants within the institutions they cover. It’s not testimony to the wisdom of the system within which reporters operate. Beats encourage a workplace in which asking frontline reporters the question—“What is the best story you know about that you cannot write?”—would likely bring embarrassing answers.
Would journalism suffer if beats were abandoned? Running a staff would be harder, but life could get interesting. Time and again great stories have been broken by outsiders with clear eyes, who owed nothing to the informants who feed and water the beat reporters. Watergate didn’t come out of The Washington Post’s political staff; the My Lai massacre wasn’t uncovered by a Pentagon correspondent but by a freelancer; and the White House press corps was largely complicit in the disinformation campaign leading up the 2003 Iraq invasion.
As a source of powerful conflicts of interest for reporters, beats achieved an apotheosis of sorts during the 1992 Gulf War when the Pentagon enforced, and the news media largely accepted, a requirement that correspondents be not just accredited but “embedded” in designated military units. That took source dependency to a new level, in which the reporters were literally reliant on the troops they were covering for their physical safety. By the time of the 2003 invasion of Iraq, embedding had become the norm for U.S. correspondents. The coverage that resulted had a triumphalist glow, paid little attention to civilian suffering, and generally failed to anticipate the subsequent collapse of the postwar regime into chaos and internecine war.
Solicitude for sources and its power to corrupt reporting reached a different highpoint in 2012 during a flap over quote approval, exposed in a disturbing New York Times report about a newly clamorous insistence among top politicos on having the last word over what was used from interviews they gave. “Now, with a millisecond Twitter news cycle and an unforgiving, gaffe-obsessed media culture, politicians and their advisers are routinely demanding that reporters allow them final editing power over any published quotations,” The Times reported. Officials were mentioned who red-penciled obscenities, squeezed back long-winded comments, and insisted on deletions, not because they had been misquoted but because they decided the remarks were ill-timed or imprudent. “Organizations like Bloomberg, The Washington Post, Vanity Fair, Reuters and The New York Times have all consented to interviews under such terms,” reporter Jeremy Peters wrote.
To be fair, there’s something to be said for this, if the alternative is forcing interview subjects to surrender any and all control of their words the moment they utter them. That might be called the Mouse Trap Model: The lid slams shut, and even if moments later the source has speaker’s remorse—or has unwittingly uttered nonsense—the words pretty much belong to the reporter. As a source, you’re grateful when reporters read back what they want to use from your interviews. Sometimes you’ve been misheard, and sometimes your comments—once stripped of tone and inflection—don’t really say what you were trying to say; so you suggest changes. The objective of an interview, after all, isn’t to record stenographically whatever you say, but to convey what you mean. True, that’s a slippery proposition, but usually the point is to learn somebody’s views, not to catch them sounding foolish. Because few people speak in well-turned prose and most people grope and fumble, the idea of a reporter’s treating an interview as a collaboration toward a common goal—clarity—isn’t a bad one. Seeking source feedback beforehand can avert both factual errors and, worse, the mistakes of context and meaning that routinely make even accurate reports misleading and infuriating. (Many media organizations have traditionally given sources greater regard than the traditional Mouse Trap Model suggests. Magazines employ fact checkers who read back comments and characterizations to unearth substantive and interpretive problems. Some documentary filmmakers explicitly collaborate with their subjects: If the producer is telling “their” story, the logic goes, shouldn’t “they” have a hand in shaping it?)
This controversy, however, wasn’t about clarity. It was about strengthening official control over news to where the idea of an independent, adversarial press became yet another fairy tale beloved mainly among retired publishers. Not only were these prized sources deciding when they would talk, what they would say and to whom; not only might they agree to talk only if certain topics were off-limits and they were allowed to set conditions on how they could be identified—now they were getting yet another concession: They were permitted to meditate over their comments, consult with advisers, and change any they disliked, regardless of how unintentionally illuminating the original remarks might have been. The controversy took another turn when it was disclosed that a Washington Post reporter had sent drafts of a lengthy article on higher education in Texas to certain of his sources, and then incorporated some of their suggested changes into the version that was published.
Naturally, the value of source feedback can’t be discounted. The concern here, however, is over relinquishing a vital area of editorial independence and knuckling under to the already vast power of well-placed sources. There’s a huge danger of compromise and corruption, once certain people who figure in coverage are given a seat at the editor’s desk and invited to negotiate details of that coverage. The fairness question looms: Which sources are invited and which left out? Won’t this practice become another avenue for the influential to wield yet greater influence? At a minimum, it would seem readers need a heads-up. If interviews are filtered through a post-facto, external editorial review in which comments that will appear as impromptu were actually little more than prepared statements, the public should know. Likewise, if people who figure in a story have a backstage role in critiquing and reshaping that story, their input should be signposted. A more collaborative model may have its strengths, but none of them matter if it’s introduced furtively to a public that would be shocked to learn that’s how the game is being played.
Source protection in the digital era
The upshot of the foregoing is that the normal dynamics of reporter-source relations are fraught with complexity and inconsistencies. The picture that emerges is of sharply divided practices within the news media when it comes to the rights and privileges of sources. The notion that source protection has core standing among the tenets of journalism ethics is an appealing one, but crumbles on closer inspection. Informants whose once and future value as news sources is deemed great can expect forbearance, editorial flexibility and, if tracking back the information to them might cause discomfort, a determination to keep their identities secret. Such practices as quote approval, embedding, and even routine beat-tending exemplify an unavoidable tendency for journalists, whose most fundamental nutritional need is information, to nurture the sources of that nourishment. When it comes to the one-off sources, the ones who are momentarily indispensable, there’s little to suggest a comparable duty of care among reporters. The understandable journalistic preference for full attribution will incline the reporter to identify them by name unless they demand concealment as a condition for talking. Reporters may soft-pedal possible adverse consequences to them, while looking critically at any benefits they might derive as possible reasons for them to distort or overstate what they know. (It’s notable that the recurrent dust-up over paying sources invariably concerns largesse shown to ordinary people caught up in fleeting scandals. These are people who have no way to cash in on their media exposure the way that professional sources do, through enhanced stature or name recognition or by having their interests advanced—hugely valuable compensation that isn’t defined as “payment” and is rarely seen has corrupting.)
In 2010, with its release of the classified 2007 gunsite footage of a U.S. helicopter killing civilians on a Baghdad street, Wikileaks inaugurated a new era of relations between journalists and sources. For the first time global news organizations were confronted with an independent information provider of immense reach that was without ties to or dependency on existing governments and which had no corresponding incentives to nurture relations with official news sources. The marquee sources of the Wikileaks era—namely Chelsea Manning, Julian Assange, and Edward Snowden—constitute an influence on journalism that is profoundly disruptive to the patterns of source-reporter interaction discussed earlier:
- As sources, they’re not on any conventional reporter’s roster of people whose collaboration is a steady and predictable part of beat coverage, and they play no role in the informational network out of which normal news arises.
- They hold out no promise of a continuing flow of significant information; instead, their future as informants of any kind is under a cloud.
- The information they offer challenges what had been known publicly on a given matter.
- Their disclosures may therefore constitute a rebuke to the integrity and competence of the journalism establishment that had nourished and tended the inventory of now-discredited public understandings.
- They may have access to distribution channels of their own, which compete with and undermine the authority of existing news media channels.
- And because the sources emerge from outside the usual social nexus of information providers, they’re unlikely candidates for media protection if the information causes official displeasure.
Before Wikileaks and Snowden, the exemplar of predigital era disruption was the defense analyst Daniel Ellsberg, who leaked the Defense Department’s secret in-house history of the Vietnam War 1945–1967. Before he approached The New York Times in early 1971, Ellsberg tried to get antiwar members of Congress to make the Pentagon Papers public on the Senate floor, thereby taking advantage of lawmakers’ legal immunities. Although the Supreme Court, in a widely heralded First Amendment ruling, later barred the government from stopping The Times from publishing the material, the lawfulness of Ellsberg’s leaks was never adjudicated. Ellsberg himself wasn’t treated especially kindly by the media, even by his beneficiary, The New York Times, and was left to his own devices to defend himself in the Espionage Act prosecution that publication of the history provoked. He has recalled ruefully Times coverage of his personal life that he says impeded his ability to raise money for his defense. The case against him fell apart nearly two years after the 1971 Supreme Court ruling only because of disclosures about illegal wiretaps and the burglary of his psychiatrist’s office by White House operatives.
The spate of federal prosecutions of news sources that began in the waning days of the Bush Administration intensified under Obama’s, and now stands at seven, including the pending complaint against Edward Snowden, who remains in de facto exile in Russia. It’s evidence of an approach to official secrecy that, by the standards of other countries, is ferocious.
Chelsea (then Bradley) Manning was arrested in May 2010 for downloading secret U.S. military and diplomatic documents to Wikileaks, which became headline news worldwide. She was then held for nine months in a Marine brig in Quantico, Va., in what the American Civil Liberties Union called “prolonged isolated confinement and forced idleness,” spending 23 hours a day in a 6-by-12-foot cell, and allowed to exercise—shackled—for one hour in another windowless room. She was often stripped and forced to stand naked outside her cell to be inspected, had her sleep interrupted frequently, was periodically deprived of her reading glasses, and generally was subjected to treatment meant to “degrade, humiliate, and traumatize…” Why this former intelligence clerk without terrorist connections or secrets to hide was treated with a cruelty that no dog pound would tolerate remains a mystery. (It’s worth pointing out that Ellsberg spent no time in jail in connection with the Pentagon Papers case.)
Ultimately, Manning was tried before a court martial and sentenced to 35 years. In the waning days of his administration, President Obama commuted Manning’s sentence, and she is scheduled to be freed in spring 2017 after seven years behind bars. Wikileaks founder Julian Assange, who was Manning’s conduit, has been under de facto house arrest in the Ecuadorean embassy in London since 2012; he has said he fears extradition to the United States, and has refused to travel to Sweden to answer complaints from two women about sexual misconduct.
Snowden’s own story differs from those of Manning and Assange because the focus of his leaks was a massive program of domestic surveillance whose existence had been explicitly denied by the National Security Agency and which, once exposed, was ruled illegal. His leaks, in that respect, were a much greater embarrassment than those of Manning. He has also been far more media savvy. Uniquely among contemporary whistleblowers, Snowden sought out and collaborated with an independent filmmaker who wanted to document his 2013 media interactions as a prospective source. The result was Laura Poitras’s Citizenfour, a 2016 Poitras, L. (2016). “Citizenfour.” Praxis Films. [Google Scholar]feature-length documentary largely filmed in the Hong Kong hotel room from which Snowden and journalists including Glenn Greenwald negotiated with various news outlets over release and use of his data. Snowden also cooperated with Hollywood filmmaker Oliver Stone in a 2016 fictionalized portrayal, Snowden, which starts a decade before the leaks but which is chiefly a film about the making of Poitras’s film. Although whistleblowers have been the subject of sympathetic movies in the past—for example, Mike Nichols’ 1983 film Silkwood, about a nuclear industry worker who died en route to a meeting with a reporter to discuss dangerous contamination—Snowden appears to be the first with the sophistication to seek to document his own leaks contemporaneously with his arranging them. The zeal with which the United States pursued Snowden was such that a plane carrying Bolivia’s president was diverted from the airspace of several European countries and forced to land in Austria in 2013 because it was believed Snowden might have been aboard trying to leave Russia for an alternative venue in Latin America. In the aftermath of the Manning commutation, U.S. politicians—including President Trump–again described Snowden as a traitor, and if he returns to the United States to face trial he could be sentenced to life in prison.
The U.S. harshness toward those who leak secrets is far from a universal practice. Elsewhere, punishment for making official secrets public is less severe than penalties in the United States for driving drunk: at worst, two years in Britain and Denmark. In other Western countries, maximum punishments range from four years in Sweden and Spain, to five in Germany, Belgium and Poland, and seven in France, according to an analysis of 20 European countries by Sandra Coliver, a legal expert with the Open Society Justice Initiative. The group fostered a multiyear, international effort to formulate broad principles reconciling the legitimate need to keep government secrets with the no less legitimate need to hold governments publicly accountable.
Not only are penalties mild elsewhere, Coliver found, prosecutions are rare. In six countries, as of 2013 nobody in the previous decade had been convicted for disclosing state secrets. In Britain, since the 1989 Official Secrets Act took effect, only 10 public employees had been prosecuted. The longest sentence, one year, was imposed on a naval petty officer who sold intelligence to a newspaper about a possible Iraqi anthrax attack. Apart from the United States, the only country where prosecutions were common is Russia (an irony, in light of Russia’s willingness to harbor Snowden.) There, 10 government employees had been sentenced in the past decade for four to 15 years for making government information public. The study found that Europe’s courts seemed to be moving toward backing whistleblowers strongly, even when state security was breached. In a 1996 case, a military intelligence official in Romania was initially sentenced to two years for releasing the tapes of illicit wiretaps his agency had made of journalists and politicians. But the European Court of Human Rights ruled that he was wrongly convicted, that he was acting in good faith in exposing illegalities to the public, and that the public’s interest in learning about the wrongdoing outweighed the agency’s interest in keeping its good name.
That approach is broadly consistent with the international effort that has taken the form of a new set of legal and policy recommendations. Grandly titled “Global Principles on National Security and the Right to Information,” it’s known informally as the Tshwane Principles, for the South African district where it was put in final form. Tshwane is the work of 22 international organizations and academic institutions that, through 14 meetings in various venues throughout the world, wrestled with how to balance the public’s right to significant information against their governments’ needs for secrecy. It received little attention in the United States, though it has gained support from the Council of Europe. The Europeans seem to like the idea that governments should be made to explain their secrecy policies—and when those policies are defied, demonstrate that the harm done by security breaches actually justifies reprisal.
Among Tshwane’s cornerstone principles:
- The public has a right to government information, and the burden is on governments to show why they must restrict that right.
- Certain types of information are of such compelling public interest that they should be disclosed except in “the most exceptional circumstances.”
- People who expose wrongdoing “should not face retaliation if the public interest in the information disclosed outweighs the public interest in secrecy.”
- Whistleblowers should first try to address problems through official channels and should not disclose any more information than is necessary to bring attention to the wrongdoing—which, Coliver suggested, is a standard that was exceeded by Manning’s own release of 700,000 military and diplomatic documents.
- Most remarkably, though, even if a whistleblower violates those guidelines, Tshwane asserts that any penalty should be proportionate to the harm done. “Government authorities, in order to justify any punishment, should undertake an investigation, and should explain publicly, in as complete detail as possible, the actual and specific harm caused,” Coliver writes.
That absence of a showing of harm is a deeply disturbing element of the U.S. secrecy panic and the counterattack against the people behind the disclosures. For all the gnashing of teeth over the Manning leaks, for all the fevered denunciations of Snowden’s exposure of domestic surveillance, nobody has been able to produce evidence of actual damage—to national security, to counterterrorism, to intelligence agents, to diplomatic initiatives, to the confidentiality of top-level parleys. Indeed, a reasonable case could be made that, say, the diplomatic cables that Manning and Wikileaks made available to news organizations in 2010 were of considerable public benefit (and of particular benefit to the United Sates, in that they couldn’t fail to insert U.S. perspectives into headlines worldwide.) At issue were closely observed dispatches that had bearing on a trove of political questions with global impact, among them:
- Did Arab leaders privately share Israel’s fears of Iran?
- Had Vladimir Putin squirreled away so much graft that he’s the richest man in Europe?
- Was Iran approaching Venezuela’s then-President Hugo Chavez in hopes of finding uranium for an Iranian nuclear program?
- Did the United States pressure Spain to derail an investigation into the Army’s 2003 killing of a Spanish newsman in Baghdad?
- Has the Mexican military been a reliable ally in the war on drug traffickers?
- Might China prefer a Korea reunified under Seoul to the uncertainties of a volatile North Korea in perpetual collapse?
It’s true that Manning violated oaths and broke laws in downloading the low-grade military and diplomatic secrets he provided to Wikileaks. But the world’s leading news organizations then evaluated that material and decided to make much of it public because of its ‘‘immense value,” as then-New York Times executive editor Bill Keller wrote. So, if these news media believe they were right to publish the material Manning gave them, how could they stand aside as he faced life in prison for giving it to them? If they did right and the world benefited, did he do wrong?
The news media’s silence concerning Edward Snowden was even more disturbing, since his disclosures exposed the National Security Agency’s monumental, undiscriminating, intrusive and illegal monitoring of civilian communications in the United States and abroad. Under a program code-named Prism, Snowden disclosed, the National Security Agency and the Federal Bureau of Investigation linked to the central servers of nine major Internet companies, downloading extensive materials so that foreign targets could be tracked. After the Prism leak, an even more disturbing portrait emerged of close coordination between Silicon Valley and the national security apparatus. As The New York Times reported, “[B]oth hunt for ways to collect, analyze and exploit large pools of data about millions of Americans”—one for intelligence, the other for money. No less important, Snowden’s leaks also indicated the National Security Agency had been sweeping up data for seven years on domestic U.S. phone traffic, something previously assumed to have been outside the agency’s remit. Unlike the Wikileaks files, the Snowden leaks did not, by and large, consist of the sensitive information the spymasters had scraped up, but instead illuminated a much more serious matter—their breathtaking capacity to scrape. The picture that emerged is of a stupendously vast surveillance system, one that US. Intelligence agencies have been so successful in fashioning that their capability has been woven into the infrastructure of the Internet itself.
This was big, and the public seems to have responded. Despite vigorous denunciations by U.S. leaders a 2013 national survey of U.S. voters by Quinnipiac University found that by a huge margin—55 to 34 percent—respondents considered Snowden a whistleblower, not a traitor. The media’s response has been less robust. An exception was an eloquent Times editorial, “Edward Snowden, Whistle-Blower,” published on New Year’s Day 2014, that urged the White House to show leniency toward Snowden and recounted the broad impact of Snowden’s defiance, including widespread public outrage, critical court rulings, internal investigations and even a grudging nod from the White House for his role in provoking domestic debate over surveillance. The Times argued that Snowden deserved either clemency or some minimum-punishment plea bargain, and concluded: “When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government.” This was some improvement over the sparse coverage of the Manning trial and The Times’ apparent distaste for Wikileaks founder Assange, who was the subject of a scathing 2011 profile in the Sunday Magazine written by editorial chief Keller himself, which characterized Assange as peevish, contemptuous, disheveled, malodorous, paranoid, manipulative, and volatile, in almost those words.
So amid this practice of source abandonment, The Times’ editorial plea was welcome. But for the most part the media—despite the strongly sympathetic documentary and Hollywood film treatments—still haven’t embraced the pro-Snowden case with appropriate vitality, and haven’t gone nearly far enough toward ensuring a fair shake for whistleblowers with vital stories to tell. First, the idea that Snowden deserved a break because his “disclosures have inspired an overdue debate,” as The Los Angeles Times suggested, is a curious notion. Inspiring a debate hardly seems worth rewarding, all by itself. Lots of terrible things provoke debate too. What Snowden did was put before the public information about major government misconduct that belonged in the public domain, misconduct that constituted, arguably, the most dangerous and far-reaching power grab of the Information Age. And he embarrassed the administration into reluctantly addressing questionable and invasive practices, which officials had lied about. That’s not inspiring a debate; that’s calling government to account.
Second, the news media still haven’t owned up to their own complicity in the affair. Snowden could have done nothing without them. The media didn’t just report on his leaks; they were the indispensable means by which his leaks reached the world, the whole reason his leaks mattered. The media weren’t observers; they were Snowden’s instruments, enablers, and beneficiaries. If they truly want to defend him, they should start by acknowledging that they stood alongside Snowden as public servants, and by publishing the information he provided affirmed his value in the most compelling way they could.
Last, the thrust of the editorial appeal was to the conscience of the administration. That seems an obsequious position to take, the 21st-century equivalent of imploring the sovereign for clemency. The unstated premise of the editorial is that Snowden’s fate is in the hands of the state’s prosecutors. If true, that would only be because the United States has been emasculated by laws that prevent courts from administering justice in cases like his. Elsewhere, if civil servants violate secrecy rules by disclosing information about what they believe is criminality by officialdom, they can argue in court that their breaches served a greater public benefit. And judges could then do exactly what they’re supposed to do—exercise judgment, and decide whether to forgive or punish the offenders. Snowden deserves a sturdier and more muscular defense, something appropriate to the enormity of the wrongdoing he has exposed, something that helps make the country safe for others who have stories the public is entitled to hear.
Yet, in the final analysis, the argument for a public benefit defense is premised on a dispassionate assessment of consequence: What indeed were the effects of Mannings’ massive 2010 military and diplomatic disclosures? Did the leaks do harm or do good? As of early 2017 nearly seven years have passed; the U.S. military presence in Iraq has largely ended, and the dust had settled from the release of the State Department cables. The moment is more than ripe for an accounting. Did Wikileaks demoralize dedicated officials and expose intelligence assets to risk and reprisal? Or did it blow whistles that needed to be heard, embolden dissidents worldwide, fuel the Arab Spring, encourage lackluster news media to defy official controls, help chase despots from power? What’s so alluring about these questions is first, that they are answerable, perhaps not definitively, but persuasively; second, that they should be front and center in the determination of what course justice should take in setting sensible limits on official secrecy and the free speech rights of sources; and last, that they are just the kinds of things that journalists are trained to find out. That final point can’t be overstated. It’s the news media, if they mobilize, that have the skills and the capacity to recast the entire debate over official secrecy by examining, with care and precision, the impact that the most audacious and most reviled violations of official secrecy have had.
The digital age explosion of communicative capabilities has created greater capacity than ever for both suppression and emancipation. There are no guarantees that the proliferation of channels will mean a richer availability of information with genuine public significance. That happens only if people who have that information believe it’ll be heard and welcomed, and if they can step forward with it without fear of punishment. That’s why the whole edifice of informational freedom in the digital age depends on creating an environment in which sources can speak.
References
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One Response
Illuminating and, for the news media, chastening one hopes.