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CONFIDENTIAL SOURCES UNDER ATTACK
A FREE PRESS IS VITAL IN A FREE COUNTRY, AND REPORTERS NEED TO BE ABLE TO PROTECT SOURCES IN FULFILLING THEIR WATCHDOG FUNCTION

The United States isn't on the latest list of countries where reporters have died in the line of duty, but we're also not the haven of safety for a free press that you might think we are.

Granted, there are many places around the globe where being a journalist is a daily act of suicidal courage. Last year, 56 reporters from more than a dozen countries died carrying out their work, according to a survey by the Committee to Protect Journalists. The causes of death ranged from combat injuries and accidents in Iraq, to gangland-style executions and torture elsewhere.

The U.S. has a long way to go before we reach that level, and I hope and pray that we never do. Still, nearly a dozen journalists have died in the line of duty in the U.S. in the last 30 years. They ranged from Don Bolles of the Arizona Republic, blown up in his car while exposing the Mafia, to unknown reporters from other countries working in the U.S. who were murdered while publishing critical coverage of their native governments.

Given that less-than-perfect safety record, an already hostile atmosphere for reporters here could become downright frightening if a recent trend in this country - one that is meant to silence and intimidate the media - is allowed to continue.

In the last few years, a growing number of U.S. courts have threatened journalists with prison for not revealing their confidential sources. One of those reporters, Jim Taricani of WJAR-TV in Providence, R.I., was just released after serving a four-month home confinement for refusing to reveal how he obtained an FBI surveillance tape that had been sealed under a court order. (He was confined at home instead of prison because he has severe health problems.)

It is troubling and jarring to see the United States cited on the Committee to Protect Journalists' most recent list of countries that have imprisoned reporters and editors. Among the other nations that routinely practice such intimidation? Iran, Cuba, China and Turkey.

Now, U.S. journalists are awaiting the outcome in the latest case of hand-over-your-source-or-else. This one involves New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper. Both face up to 18 months in federal prison for not revealing their sources in a highly publicized case in which syndicated columnist Robert Novak identified a CIA agent.

The CIA agent's husband, a retired U.S. diplomat, had publicly questioned the Bush administration's claim that Saddam Hussein's government in Iraq had tried to obtain nuclear materials from Africa. Shortly afterward, someone leaked the CIA agent's name to Novak in what appears to have been retaliation against her husband. It's a crime for a government employee to disclose a CIA agent's name; hence, the federal investigation to discover who did so has spilled over to Miller and Cooper.

Miller and Cooper both gathered information on this case, although Miller never published a story on it. A three-judge panel of the U.S. Court of Appeals upheld a lower court's finding of contempt against Miller and Cooper for refusing to disclose their sources. The case is now before the full appeals court.

To those who might dismiss this as having little effect on the average American, I would say, think again. Study that list of countries published by the Committee to Protect Journalists, and you'll quickly realize that in most countries where it's dangerous to be a reporter, it's also dangerous to be an ordinary private citizen.

We should all be worried when journalists are threatened to reveal their sources. What if this trend spreads to other professions? What if U.S. courts begin threatening lawyers with imprisonment for not disclosing confidential conversations with their clients, especially lawyers who represent clients perceived as threats to U.S. security?

Reporters take their responsibility to protect their confidential sources seriously, and every reporter I know would go to prison instead of disclosing a source's name.

That's precisely why Harry Rosenfeld, editor at large of the Albany Times Union, chose to never learn the name of the source popularly called "Deep Throat." In the 1970s, Rosenfeld was the Washington Post's Metro editor, with hands-on responsibility for the coverage of the Watergate story, that epic tale of corruption and misplaced power in the Nixon administration.

Watergate reporter Bob Woodward promised confidentiality to his source Deep Throat, and Rosenfeld decided against insisting that Woodward share Deep Throat's identity with at least one editor at the paper. To this day, Rosenfeld doesn't know Deep Throat's real name. Post editor Ben Bradlee, now retired, and Woodward's reporting partner on the Watergate story, Carl Bernstein, eventually did learn Deep Throat's identity, but while Woodward and Bernstein worked on the story, Woodward was the only one who knew who Deep Throat was.

Rosenfeld looks back at that decision with mixed feelings. He says he would never again allow a reporter to withhold a source's name from an immediate supervising editor on such a potentially dangerous story, because information that could bring down an entire company shouldn't be the sole responsibility of one person.

But at the time, Rosenfeld trusted Woodward - known as a thorough and careful reporter - and he didn't trust the U.S. government. Rosenfeld very realistically feared that he would be subpoenaed and pressured to disclose the Washington Post's sources on the story.

If that had happened, "I wouldn't tell, so I would wind up in the slammer, and if I wound up in the slammer, I wouldn't have been there to keep the story going," Rosenfeld recently recounted, emphasizing that he would never have revealed Deep Throat's identity.

Concerned observers today see a correlation between stepped-up pressure on U.S. journalists to reveal their sources and a notable decline in the government's willingness to provide public information.

"Certainly, since September 11, there's a heightened awareness of issues involving security, and there may be a greater need to guarantee security with regard to disclosure of records," said Robert Freeman, executive director of the New York State Committee on Open Government. "But at the same time, government has forgotten that there is a distinction between embarrassment and real harm."

The limiting of public information "has gone up since this administration took office," Freeman added.

Decisions to classify federal government documents stood at 9 million in 2001. In 2003, the number had increased to 14 million, according to recent congressional testimony by Thomas Blount, director of George Washington University's National Security Archive, an independent research institute and library.

"National security is skyrocketing, but like the ballistic missile defense system, it cannot tell the real threat from the decoys," Blount told the congressional committee in March.

In such an atmosphere, is it any surprise that the government and the courts are coming down hard on reporters who push for access to public information and who refuse to disclose their sources?

Yet, government officials who end up on the reverse side of this process, by acting as confidential sources, develop a heightened appreciation for a reporter's rock-solid promise to protect their identities.

Jeffrey Pearlman, a visiting clinical instructor at Albany Law School, served as a volunteer attorney for the State Senate Democrats during last fall's hotly contested election between incumbent Republican Sen. Nicholas Spano and his Democratic opponent, Andrea Stewart Cousins. Pearlman, who also worked as a staff attorney in the State Senate, found that in an intensely publicized race involving court battles, recounts and razor-thin margins, he sometimes needed to act as an off-the-record source to reporters.

Spano, of course, won re-election, and Pearlman can now talk about details of the race.

At the time, Pearlman recalled, "I didn't think, "Is my trust merited?' I just assumed it." He was proven right; none of the reporters he worked with on that story betrayed his identity as a confidential source. The experience has given him a fresh perspective on the value of confidential sources.

"I think if you erode the kind of protections that are in place, then people won't come to reporters, and that's a problem," Pearlman said. "Reporters won't go the extra yard to get the truth out."

In my own reporting career, I can think of only one incident in which disclosing a source's identity would have certainly cost that source's job, and might well have put the person's safety at risk. The source trusted me enough to slip me an internal police investigation file on a former cop who was awaiting trial for attacking a woman in a public park. The file detailed how the same man, 15 years earlier, had assaulted and nearly killed a 12-year-old girl while working as a police officer, and how his department had conspired to protect him and bury the investigation.

My editor knew where my source worked, and knew enough about the source to feel safe in trusting the information, but he never knew the source's name. I was lucky, too, because the district attorney's office was aggressively prosecuting the case. Had the DA sought to protect the police department and stop the leaks about the case, I could have found myself under subpoena and under pressure to identify my source. But that wouldn't have mattered, because I would never have disclosed the source's name. I believe that every reporter I know would have made the same decision.

Certainly, we need a federal "shield law" in this country - a law that protects a reporter's right to protect sources. Shield laws exist in 31 states, including New York, which may well be the reason that most of the cases to compel even local reporters to disclose their sources have been filed in federal court. But a federal shield law won't help Judith Miller and Matthew Cooper, and I have no doubt that if they lose their appeals, they will go to prison rather than disclose what their information on the source of the CIA agent's name.

Said Harry Rosenfeld: "I think it's clear that what the administration is after is not the identity of the person who leaked it; the administration is trying to signal the press, "Don't you go off the reservation; don't you write stories we don't want you to write; we'll go after you.' "

And maybe you, too.

Darryl McGrath is a freelance writer based in Albany.