Letter to TalkingPointsMemo

Good discussion over at Talking Points Memo about the jailing of the Time journalist over the Plame leak.

I've just fired off the following email responding to Marshall's discussion. Will let you know if I get any response of note:

I mostly agree with your position on the journalistic obligation to protect sources from identification. It seems to me that no society can afford to carve a lawless space where First Amendment freedoms absolutely stifle all national interest law. An absolute freedom to divulge information anonymously to journalists, knowing that such information would be kept strictly confidential, would ultimately destroy our entire system of classification. If we presume that some information really must be kept out of the public eye on national security grounds, then there must be limits to the communications between press and government officers behind the wall of secrecy.

But there's one feature of American law which seems to undercut your position in this case. After the disclosure of the Taguba investigation into the Abu Ghraib abuses I learned of a law forbidding the classification of documents with the intent to cover up violations of United States law. The law in question is Executive Order 13292 which provides:

Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security

It seems to me that this law gives journalists a pretty clear guide for determining the JUSTICE of any decision by the government to classify information which they have obtained. When a journalist obtains information that falls afoul of one of these 4 sub-clauses, the rationale behind refusing to reveal the source makes sense to me.

But in Novak's case, whatever source contacted him and the other journalists was obviously not divulging information that had been improperly classified. Instead, this source was seeking to divulge information that was properly and justly classified in order to advance a narrow partisan agenda.

To what extent should journalists feel a vested stake in holding sources accountable for the information that they choose to divulge? Yes, confidentiality encourages the leaking of information to the press, which provides useful benefits. But does the press also have any incentive to encourage those sources to make certain that their decisions to leak will advance the interests of this nation rather than materially harm it?

If the promise of confidentiality is meant to condition the behavior of sources (encouraging them to leak), should journalists also accept more responsibility for conditioning that behavior to accord with the law and national interest (encouraging them to leak responsibly).

On a related note, when a journalist has been used, wittingly or not, to undermine national security, as in the Plame case, we talk of the precedent set with sources which the journalist must weigh in deciding whether or not to reveal the source. But what also of the precedent set with the public at large? If journalists set the precedent that their interactions with sources is done without regard to the balance of the national interest, isn't it possible that this could incite a regulatory or legislative backlash against the press or its sources that would have far greater ramifications than the chilling effect of one journalist's decision to divulge a source which had flagrantly violated the law (and thereby harmed national security)?

They're complicated issues. I agree with Marshall that the law should be on the books, and that there are instances where a journalist must choose between adherence to the law and questions of conscience or professional integrity. Just because a decision is motivated by principles with which I agree, does not mean it should thereby be free of the consequences that a similar actor with less pure motives would face.

But I'm not sure that the journalism profession has been taking a look at the broader social interest beyond the First Amendment in developing its code of ethics regarding source protection. Freedom of the press is one of the most critical rights guaranteed to the American people. But it is only one of many competing rights which must be balanced and adjudicated. I'm not sure journalists are doing themselves, or us, any favors by considering the issue so narrowly.