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The Anonymous Source - an Endangered Species?

by Philipp Steger

bridges' is a publication that takes a broad view of S&T Policy as the sum of a wide array of phenomena, from legislative measures and judicial decisions, to causes embraced by grassroots movements and any occurrence or trend that impacts a country's national innovation system, to the way a society goes about educating its youth. S&T Policy is thus not viewed as the exclusive domain of policymakers or scientists, but as a policy field and part of societal reality that is continuously shaped by different players, many of whom wouldn't even claim to be influencing S&T policy. But were they to wonder whether their actions have repercussions on the national innovation system- - i.e. a country's capability for continued and sustained innovation, which is vital for long-term economic growth - they would realize the extent to which their actions are indeed influential.

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While 'bridges' naturally focuses on issues and news, which are solidly in the domain of traditional science policy, in this section of the publication we would like to step beyond the narrower field of S&T Policy and look at issues which, although not specifically about science, are nevertheless worth thinking about for anyone interested in S&T Policy in a broader sense.


It seems to be a reliable constant of human nature that people with a secret to keep will inevitably talk about it to someone with whom they are not supposed to share that information. In Washington, DC, this appears to be endemic. Even science policy, an area which some claim has been unduly politicized in recent years, is not above the fray, with government employees leaking information about alleged abuses of science in policymaking. No matter what their motivation is - to appear as important players who are privy to well-kept secrets; to reveal government abuse by becoming a whistle-blower; or simply to harm opponents by leaking confidential information at inopportune times - talkative bearers of secrets have long been an invaluable source for journalists, in particular those with a penchant for investigative reporting. But all that may be about to change.


When those who are not supposed to talk, do, it reads something like this: "a senior White House official who spoke on condition of anonymity because most staff members are not authorized to speak about [whatever confidential information], said . . ." These are the tormented wordings one is likely to encounter now that the use of anonymous sources has been receiving a lot of unwanted attention, forcing venerable institutions like The New York Times (from which the above quote was taken) into linguistic contortions. It's no wonder that even the Times, in many ways a beacon for the English language and its proper usage, resorts to such acrobatic exercises. After all, The New York Times has found itself at the center of a legal skirmish which is bound to have a long-term effect on how the media will use anonymous sources. Future whistle-blowers may be reluctant to disclose information they are not supposed to disclose, especially when disclosure might lead to retaliation were the source to be revealed.


The use of anonymous sources had been eyed warily by many in the Bush administration and by those who accuse the news media of a liberal bias, but it was really the publication of a Newsweek article, relying on an anonymous source, earlier this year, that brought the practice to the verge of ill repute.
In May, the renowned magazine Newsweek published an article in which - quoting an anonymous source - it announced that a soon-to-be-published military investigation would confirm allegations that American interrogators at the detention facility at Guantánamo Bay had repeatedly abused the Koran. The Newsweek report led to a number of violent uprisings in Muslim countries around the globe, causing several deaths. Faced with this consequence, enormous political pressure, the lack of an official confirmation as to whether or not the imminent government report would substantiate the existence of such allegations, and unwilling to name the anonymous source, Newsweek withdrew the article. A few weeks later, on June 3rd, the United States Southern Command published a report confirming a number of cases of mishandling the Koran at Guantánamo Bay.


The immediate effect of the Newsweek incident has been an increased caution amongst news media regarding what had admittedly become a fairly liberal use of anonymous sources.


It is against this background that a different case, likely to have a more lasting effect on the use of anonymous sources in news reporting, has recently reached its dramatic climax: the case of Judith Miller, an investigative journalist with The New York Times, and Matt Cooper from Time magazine. Both journalists had faced prison sentences for refusing to name confidential sources they had relied upon in their reporting or research. While Matt Cooper, in the eleventh hour, received a personal release from the confidentiality pledge he had made to his source, and thus was able to avoid a jail term, Judith Miller, not having received such a direct release and adamantly refusing to reveal her anonymous source, went to jail on July 6th for up to 120 days.


The case, which has led to the imprisonment of Judith Miller, goes back to the days prior to the war in Iraq. In February 2002, as part of a broader investigation on whether Iraq had purchased uranium for the production of nuclear weapons from Niger, the CIA had sent Joseph C. Wilson IV, a high-ranking US diplomat and former ambassador, to the African country to check the allegations. The suspicions turned out to be unfounded, and Wilson, irritated by the administration's insistence that Iraq had purchased uranium, wrote about his trip in a July 2003 op-ed commentary in The New York Times, criticizing the president for a statement he had made in that year's State of the Union address regarding a purchase of uranium by Iraq. The president's statement was used to undergird the claim that Iraq had weapons of mass destruction. Wilson's article was soon followed by a syndicated column by Robert D. Novak, in which Novak, citing anonymous sources - two senior officials within the Bush administration - revealed that Wilson's wife, Valerie Plame, was a covert CIA agent and had, in that capacity, arranged Wilson's trip. Some observers at the time felt that the information on Plame's identity as a CIA agent had been leaked to Novak in an attempt to retaliate for Wilson's critical op-ed commentary. Following the disclosure of Plame's cover, the CIA asked the Department of Justice to investigate a potential security breach, since Novak's column gave reason to believe that someone in the administration had broken the law by revealing Valerie Plame's identity to the columnist. The Justice Department, urged to vigorously pursue the investigation by, amongst others, The New York Times, eventually started a grand jury investigation under the auspices of special counsel Patrick J. Fitzgerald.


The grand jury investigation has been conducted under an intense veil of secrecy. To this day it is not clear, for instance, whether Patrick J. Fitzgerald has ever subpoenaed Robert D. Novak to testify before the grand jury and, if so, whether Novak revealed his sources. What is known, however, is that Fitzgerald subpoenaed both Miller and Cooper to testify before the grand jury about their conversations with anonymous sources on the identity of Ms. Plame. The two journalists refused to testify and reveal the identity of their sources, arguing that it was essential for the work of a reporter to grant protection to anonymous sources. Another twist was added to an already complicated case by the fact that neither of the two journalists had had a role in revealing Ms. Plame's identity as a CIA agent. Only Mr. Cooper had written about the issue, but this was after the publication of Nowak's column, whereas Miller had only conducted interviews. The Federal District Court judge hearing the case held the two journalists in civil contempt, forcing them to either reveal the identity of their sources or risk being jailed for up to 18 months or the remainder of the grand jury investigation; this is expected to close in October and would thus reduce the prison time to 120 days. In trying to fight the civil contempt, a coercive but not punitive judicial measure, the lawyers for the two journalists approached the Supreme Court. In that move they had the support of the attorney generals of 34 states and the District of Columbia who filed a friends-of-the-court brief supportive of a "reporter's privilege," which would exempt journalists from having to disclose their confidential sources in a court of law.


The state support is hardly surprising, given that 49 states have passed so-called shield laws. These laws, in essence, specify the constitutional rights derived from the First Amendment, which guarantees freedom of the press, and extends privileges to journalists similar to those that underlie the lawyer-client relationship, thus allowing them to refuse to testify about confidential sources. The motivation for states in passing shield laws stems from their experience that journalists, relying on anonymous sources, often provide extremely helpful tips in the prosecution of crimes, a benefit that seems to outweigh the disadvantages of reduced proof in cases where journalists refuse to reveal their sources.


On a federal level, which lacks any such shield law, the legal situation is more complicated, and legal precedents do not make it unequivocally clear whether the First Amendment provides protection to journalists who, facing grand jury subpoenas, intend to refuse to testify. On the contrary: recent rulings seem to indicate a certain weariness amongst the judiciary in granting journalists such privileges.


Miller and Cooper's case was dealt a blow when the Supreme Court refused to hear their case at the end of June. Although Time magazine - unlike the Times, which was also held in civil contempt - complied with the court order and handed over documentation revealing the anonymous source Matt Cooper had refused to reveal, Patrick J. Fitzgerald, the special counsel in the investigation, continued to insist that Cooper testify as well. Matt Cooper, still refusing to testify, expected to have to go to prison but was spared that fate by a last-minute direct release from his source. In the meantime, the identity of his source has become public knowledge: Karl Rove, President Bush's top political advisor, was one of the confidential sources with whom Cooper had discussed the identity of Ms. Plame.


Although it is still not clear what additional information the special counsel expects to get from Judith Miller's testimony at this point, Patrick J. Fitzgerald has continued to insist that Judith Miller go to prison until she agrees to testify. The judge denied her request for house arrest or for a specific low security prison of her choice and, on July 6th, Judith Miller went to prison rather than revealing her source.


It is ironic that Ms. Miller had to go to jail a few weeks after Mark Felt, formerly number two at the CIA, had - amidst much fanfare - revealed himself to be "Deep Throat," one of the 20th century's best protected anonymous sources. Felt had provided crucial information to Bob Woodward, which triggered Woodward's and Carl Bernstein's Watergate investigation, eventually culminating in the resignation of Richard Nixon.


Decisions such as the one to not grant First Amendment protection to Judith Miller are, according to some observers, bound to have a negative impact on investigative journalism. Ms. Miller and her newspaper, The New York Times, have made it clear what drives her decision: the belief that a journalist's credibility hinges largely on her commitment to the pledge of confidentiality made to anonymous sources. This is particularly important when it comes to whistle-blowers who, if found out, often risk severe retaliation. "American history is full of examples of whistle-blowers who were able to inform the public of malfeasance only through reporters who could guarantee them confidentiality. The federal courts' assault on this tradition could have a chilling effect on their future willingness to speak up," wrote The New York Times on June 28th.


Whistle-blowers can play, and have indeed played, an important role in all areas of government and public affairs, including science policy. Take, for instance, the debate on the politicization of science policy which has dogged the Bush administration for several years. The accusations leveled against the administration have largely been fueled by reports which relied in part on anonymous sources detailing individual cases of alleged abuse. And while it is open to discussion whether the individual cases do, indeed, constitute a pattern of abuse [see also article in bridges vol 5,  Pandora's Box - Bringing Science into Politics: The Debate on Scientific Integrity in U.S. Policymaking], whistle-blowers reporting on governmental activities that undermine the use of science in policymaking do play an important role in protecting the integrity of science.


Already, news media across the country are adopting a very restrictive policy regarding the use of anonymous sources. Such a policy, once adopted, will undoubtedly have repercussions for a variety of investigative reporting including less politically-charged areas such as science policymaking: reporters talking to people within the administration about alleged abuses of science in policymaking will be hard pressed to commit their sources to being quoted on the record. This will be a tall order for many journalists, given the lack of any whistle-blower protection for federal employees who reveal, for instance, manipulations of scientific advisory boards at agencies. A bill introduced in February by Congressmen Henry Waxman, a Democrat from California, and Congressman Bart Gordon, the ranking Democrat on the House Science Committee, would create such a whistle-blower protection. The bill is unlikely, however, to be passed.


For the time being, whistle-blowers will have to live with the risk that the journalists they talk to will be forced to reveal their sources, or they will have to go on the record, as did Rick S. Piltz, a former official with the U.S. Climate Change Science Program, which coordinates climate change science across the various U.S. federal agencies. After quitting his job in March, Piltz decided to go public with reports about undue political influence on the Climate Change Science Program. He was helped in this by the Government Accountability Project, a not-for-profit organization providing legal help for government employees reporting on government wrongdoing. The former government employee provided documentation detailing how a senior official in the White House Council on Environmental Quality (CEQ), the office coordinating the president's environmental policy, altered reports on climate change science that had been prepared by scientists. The official, a former energy industry lobbyist without a scientific background, significantly edited reports in a way that downplayed the risks of climate change and emphasized the uncertainty of climate science. A few days after the news broke, the official, Philip A. Cooney, left the CEQ for a job at Exxon Mobil.


Rick Piltz's willingness to go on the record (and effectively end his career in government) is the rare exception. In most other cases, citizens and investigative reporters will have to rely on anonymous sources - that is if these sources are willing to take the risk of being revealed by the journalists in whom they confided. Given the tough odds even anonymous sources face, putting up with excessively long relative clauses in newspaper articles seems like a small price to pay. Even if it sounds like this: "But the [EPA] scientist, who spoke on the condition of anonymity because all agency employees are forbidden to speak with reporters without clearance, said . . ."

Philipp Steger is Attaché for Science and Technology and director of the Office of  Science & Technology at the Embassy of Austria in Washington, DC.

Sources (in order of their appearance in the article):
- June 3rd News Release by the United States Southern Command regarding the Koran inquiry in Guantánamo Bay
- "Mission to Niger," July 14, 2003 - Robert Novak's column, in which the syndicated columnist wrote about Valerie Plame being a covert CIA agent  http://www.townhall.com/columnists/robertnovak/rn20030714.shtml
- Complete Text of the "State of the Union"-address of the American president , January 28, 2003
- Brief Amici Curiae in the petition for a writ of certiorari to the U.S. Court of Appeals for the District of Columbia in the case of  Judith Miller, Matthew Cooper and Time Inc. v. United States of America http://www.oag.state.tx.us/newspubs/releases/2005/060705reporters.pdf
- Detailed information on the "Reporter's privilege" on the website of the "Reporters Committee for Freedom of the Press"
- Text of the Waxman-Gordon Bill, H.R. 839 ("A bill to protect scientific integrity in Federal research and policymaking") http://www.democrats.reform.house.gov/Documents/20050216120440-04639.pdf
- The complete text of Rick Piltz's memo detailing his concerns about the governance and direction of the Climate Change Science Program
- Commentary by noted science journalist Chris C. Mooney on Piltz's memo http://chriscmooney.com/blog.asp?Id=1905
- White House Council on Environmental Quality
- The final quote in the article was taken from an article by Andrew C. Revkin, originally published on June 8, 2005 in The New York Times

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