William E. Lee, a professor in UGA’s Grady College of Journalism and Mass Communication, recently published an article entitled “Deep Background: Journalists, Sources and the Perils of Leaking” in a symposium issue of the American University Law Review. In this interview with Columns, Lee discusses leaking, confidential relationships between journalists and sources, and the Scooter Libby/Valerie Plame case.
Columns: Why the title “Deep Background?”
Lee: “Deep background” is a term commonly used by officials at the highest levels of government who want to disclose information to the press without attribution. Such material can be published, provided there is no identification of the source or how the material was obtained. Other terms commonly used between reporters and their sources include “on the record” which means material can be used in a direct quote and the source can be identified; “on background” material can be used in a quote provided the source is not identified by name, but by terms such as “senior White House official.” Material that cannot be published is referred to as “off the record.”
Columns: Why would a journalist agree to receive information with restrictions such as “deep background?”
Lee: Quite simply, journalists are happy to receive such information because it gives them an advantage over their competitors. The Scooter Libby trial provided an inside look at how government officials cultivate favored reporters and selectively disclose information to those reporters. President George W. Bush authorized Libby to disclose key classified information solely to The New York Times’ Judith Miller who was viewed favorably within the Bush White House because of her pre-Iraq war reporting. Among Washington insiders, the authorized disclosure of classified information to selected reporters is known as “planting.” This is distinct from leaking, which is the unauthorized disclosure of classified information.
Columns: How frequently does leaking occur?
Lee: Federal employees with access to classified information receive extensive training on safeguarding such information and the penalties for unauthorized disclosures. Nonetheless, leaking classified information occurs so regularly that it is often described as a routine method of communication about government.
Columns: But don’t most leakers have good intentions?
Lee: The image of the leaker as a brave soul exposing corruption-an image deeply embedded in our popular culture and vividly illustrated by Watergate’s “Deep Throat”-is incomplete and misleading. Leakers have a variety of motives and not all are good; as federal prosecutor Patrick Fitzgerald argued before the Libby jury, leaking can be a form of retribution against an administration’s critics.
Columns: Can leakers be punished?
Lee: Federal employees have no constitutional right to leak, so yes, they can. The problem, however, is finding the source of a leak. Only a small number of leaks are investigated. Moreover, the Department of Justice’s policy of not questioning reporters about their sources means that almost all leak investigations are closed without the leaker being identified. Leakers who are identified face termination or loss of their security clearances. Criminal prosecutions of leakers are rare, so much so that these prosecutions appear to be random and arbitrary.
Columns: Was Scooter Libby prosecuted for leaking Valerie Plame’s CIA affiliation?
Lee: No. Fitzgerald faced difficult tasks in proving that Libby knew Plame was a covert agent and that Plame’s job at the CIA fit the statutory definition of a covert agent. So, Libby was prosecuted for lying to the grand jury about his conversations with reporters. Libby is the first person in our nation’s history to be convicted for lying about confidential conversations with journalists. The trial and conviction of Libby hit Washington like a bombshell.
Columns: Journalists were forced to testify at Libby’s trial?
Lee: The Plame leak investigation led to the most significant confrontation between the government and the press in a generation. Prior to that, government officials assumed leak investigations would be pursued with limited vigor and would not involve the questioning of journalists. Journalists believed that they would not be forced to testify about their confidential sources. Special prosecutor Fitzgerald shredded those expectations when he subpoenaed both sources and reporters, including Miller, Time’s Matt Cooper, and NBC News’ Tim Russert and prevailed in court. One of the most remarkable aspects of the Libby trial was the testimony of reporters discussing their conversations with confidential sources. Libby’s prosecution would not have been possible without the reporter testimony.
Columns: Doesn’t the First Amendment protect reporters from having to disclose their confidential sources?
Lee: Where the conversation between a journalist and a source involves a crime, such as the unauthorized disclosure of classified information, courts have become reluctant to regard this transaction as protected by the First Amendment. So, the protection for journalists will not be found in the First Amendment, but possibly in a federal shield law, which Congress is now considering. This is an area of law that is very tumultuous and in a general state of flux.