Every day, people reach out to me with tips about things they believe to be wrong, knowing their identities will be protected at all costs.
Sometimes, these tips lead to a bunch of wheel spinning. But sometimes, they lead to worthwhile stories that shed light, including some that have helped put people who deserve it in jail.
That’s the way a free and open press is supposed to work.
And that’s why a ruling by Amy Berman Jackson, a federal judge in Washington D.C,, is so troubling.
Last week, in yet another turn of the ongoing drama that began with an affair between a former CIA director and his biographer, Judge Jackson ruled that Homeland Security Secretary Jeh Johnson does not have to answer questions from lawyers for Jill and Scott Kelley, the Tampa couple suing the FBI and the federal government over having their names leaked to the press.
The affair, as has been so well documented, was discovered when emails were sent to Scott Kelley by Paula Broadwell that the Tampa couple deemed threatening, prompting them to reach out to a friend in the FBI. That led to the investigation revealing the affair between David Petraeus and Broadwell. Ultimately, Petraeus, a long-time Kelley friend, pleaded guilty to a misdemeanor count of unauthorized removal and retention of classified material.
The lawsuit by the Kelleys has been greatly pared back by the court, to a claim of violation of the privacy act.
According to the motion that prompted Judge Jackson’s ruling, the Kelleys believe it was Jeh Johnson who leaked their name just days after Petraeus first announced his resignation back in early November 2012.
And according to the motion, this belief arises in large measure from an interview I did with Johnson a little more than two years ago, shortly after he stepped down as the Pentagon’s general counsel but before he was even mentioned publicly as a candidate to head Homeland Security.
Now, I am not in the business of outing people’s sources, for obvious reasons. But the reason I am dismayed by Judge Jackson’s ruling is not that Johnson is being protected from a deposition per se, but the steps Jackson suggests the Kelleys take instead.
Jackson started with the premise that “in the D.C. circuit court, there is a presumption against deposing high-ranking government officials.”
She ultimately ruled that the Kelleys, in essence, should first subpoena reporters to find out who is the leaker rather than the individual who may have done the leaking. Here’s a passage from her ruling:
“… plaintiffs do not indicate that they have tried to ask any of the reporters who identified their source of the information about the Kelleys as a ‘senior military official’ who that official might be, or even whether, when, and under what circumstances they received information directly from anyone at the Department of Defense. They do not state that they have subpoenaed any records from those reporters or the news organizations involved, or what the records subpoenaed from the government reveal. Indeed, they devote very little attention in their opposition to establishing that the information they seek cannot be obtained through any other means. They simply assert, “[p]rior cases demonstrate that journalists will not reveal their confidential . . . sources, even after protracted litigation.”
There are good reasons we don’t reveal our sources. It’s our word of honor that gives people a degree of confidence that they can come to the media and, if there is an agreement to do so, have their identities protected.
Though it is a matter of course at my organization that publishing information from anonymous sources essentially requires a papal blessing, people come to reporters all the time with tips, information, documents and other materials that can be used to point us in the right direction. In the case with properly vetted documents, we can use those without diming out sources who would otherwise not come forward.
In her ruling, Jackson points to the case of Steven Hatfill versus U.S. Attorney Alberto Gonzalez, brought by the researcher awarded millions of dollars after he was falsely accused as the source of the deadly anthrax scare after 9/11. In that case, the court ordered journalists to provide full responses to the plaintiff’s questions.
That opinion, Jackson wrote, “is instructive” because “before the court intervened, the reporters were all deposed, and they confirmed numerous leaks from FBI and DOJ sources, withholding only their names.”
The bottom line, according to Jackson, is that the courts will allow reporters to be subpoenaed, so until that measure is exhausted, the Kelleys are out of luck in their efforts to subpoena Johnson.
“In the end, it may turn out that the information plaintiffs seek cannot be obtained through any other means, but that prong of the two part test has yet to be established,” Jackson wrote.
In his “Under the Radar” column, Politico reporter Josh Gerstein, who first reported Jackson’s ruling, predicted it could “prompt Kelley’s legal team to begin subpoenaing current and former journalists to testify about how they got information about the FBI and Pentagon investigations. Such moves can lead to First Amendment confrontations when the reporters decline to identify their sources and the courts try to force the reporters to do so.”
Having been subpoenaed, deposed and forced to testify in the past, I certainly hope not.
It is a miserable experience I can best describe as a colonoscopy, without sedation.
But what happens to a reporter is immaterial compared to what can happen to a source, which is my real concern.
Jackson’s rationale that the Kelleys should first subpoena reporters is just the latest chill on sources and, by extension, the media, and by further extension, the public.
Earlier this year, for example, former CIA officer Jeffrey Sterling was convicted of espionage for leaking a story to the New York Times. And around the same time, the Federation of American Scientists published “Intelligence Community Policy Guidance 704.6” that subjects intelligence community personnel suspected of leaks to lie detector tests.
Look, I get Jackson’s point that Johnson is a busy man. I know this because a lot of the stuff he deals with I have to cover. Like the deaths of four Marines, killed on U.S. soil last week by a jihadi with an AK-47.
But journalists have enough challenges in trying to shed the light.
Suggesting that plaintiffs in a lawsuit over privacy put the squeeze on reporters to give up the privacy of their sources is the kind of backwards logic and irony that adds to our impediments.
Then again, this is a case full of backwards logic and irony.
While I remain grateful to Johnson that he agreed to tell me about poring over 25,000 pages of email traffic between now-retired Marine Gen. John Allen and Jill Kelley before turning them over to the Inspector General, consider this.
A government that has issued a fatwa of sorts on leakers fought to protect a cabinet member from answering questions about whether he is a leaker.
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The Pentagon announced no new troop deaths in support of ongoing operations last week.
But the the U.S. Marine Corps released the names of the four Marines killed last week in Chattanooga: Gunnery Sgt. Thomas J. Sullivan of Hampden, Massachusetts; Staff Sgt. David A. Wyatt of Burke, North Carolina; Sgt. Carson A. Holmquist of Polk, Wisconsin and Lance Cpl. Squire K. Wells (USMCR) of Cobb, Georgia.
Navy Logistics Specialist 2nd Class (SW) Randall Smith died Saturday from his wounds according to Navy Times.
There have been 2,347 U.S. troop deaths in support of Operation Enduring Freedom in Afghanistan, seven in support of the anti-ISIS campaign Operation Inherent Resolve, and two U.S. troop deaths and one civilian Department of Defense employee death in support of the follow-up Operation Freedom’s Sentinel in Afghanistan.