November 18, 2004, 8:26 a.m.
Paying the Piper
An irresponsible promise is at the root of contempt charges faced by reporters.

NBC News president Neal Shapiro has an interesting op-ed in Wednesday's Wall Street Journal, pleading the case of reporter Jim Taricani. The reporter is facing a federal contempt charge, with possible jail time, for refusing to reveal the source who gave him a videotape said to depict a local politician accepting a bribe in Providence, Rhode Island. In recent months, other prominent journalists, including the superb Judith Miller of the New York Times, have found themselves in similar legal hot water.

Naturally, subpoenas demanding that reporters reveal their sources have caused no small amount of media teeth-gnashing. Controversy here is for the good. It is important that journalists be free to dig liberally for information so the public can be edified. In the vast majority of circumstances, the authorities should just let them be. Indeed, that is precisely what happens: as a rule, law enforcement does not put the squeeze on reporters. Even though there is generally no legal bar to compelling reporter testimony, most prosecutors' offices, and certainly the Justice Department, have internal brakes in place — rungs of approval that their line attorneys and agents must scale before they are permitted to haul members of the media before grand juries.

Nonetheless, almost nothing in the field of investigations is an absolute. Public safety is a world of colliding values. Sometimes, it is simply more essential for the public to have the information so that it can be used in court to prosecute serious crime than it is for reporters to be able to protect their sources. And that is why it is worth observing that, at bottom, journalist claims of entitlement to immunity are ill-conceived.

Shapiro's article nicely captures the fallacy. He writes that, although under immense pressure from federal authorities to reveal his source, Taricani,

like any professional journalist, is loath to do so. For one thing, he gave his source his pledge of confidentiality. For another, Jim broke no law in accepting the tape, and the station did nothing wrong in airing it. On the contrary, this is precisely what news organizations are supposed to do. The footage gave the citizens of Providence information they deserved to have about city officials[.] ... [Italics mine]

The problem Shapiro describes is hardly unique to journalists. It is faced on a daily basis by prosecutors and cops, whose job it is to try to persuade witnesses with relevant information to provide it — and sometimes even testify publicly to it — in cases involving dangerous and powerful people.

It can equally well be asserted that agents break no law when they receive information, that they break no law when they use the information in their investigations (e.g., to obtain search warrants or wiretap orders), that this is exactly the sort of thing they are supposed to be doing, and that the public deserves to be protected from corruption, violent crime, etc. All that said, however, the law does not honor a promise of confidentiality made by a police officer to a witness.

Simply stated, there is an ancient doctrine of law and common sense that deals with this situation: A person may not promise something it is not in his power to provide. If he does so, it is done at his peril.

Sources routinely tell cops and prosecutors: "I will only tell you this information if you keep my name out of it." Law-enforcement people are taught that there is only one ethical response: "I will try as best I can to keep this confidential, but I cannot make that promise."

There are many foreseeable reasons why the law may require disclosure of the information, which almost inevitably leads to revealing its source. It may be the only way of proving a serious crime under the rigorous standards that apply in court. Also, if for some reason the information suggests someone who has been charged with a crime is not guilty, the government is obligated to reveal it under the Brady doctrine which requires production of exculpatory evidence. (Imagine for a moment how the New York Times editorial board would shriek if, in a trial, the Justice Department decided not to reveal evidence favorable to a defendant just because an agent had promised the source confidentiality.)

Under the law, no matter how important information is to public safety, and no matter how much its public revelation may jeopardize the safety of the person who provides it, a promise of confidentiality is simply not enforceable. Not for law enforcement that protects the public, and not for journalists who inform the public.

What the reporters here want is the judicial enforcement of a promise they were not authorized to make. As they all well know, there is no legal basis for such promises. Bluntly, they are behaving unethically if they promise confidentiality under the pretense that it is lawful to do so. They are operating on the basis of what they would like the law to be rather than what it is — the same sort of thing over which they are wont to crucify public officials.

Given that there is no legal basis for a reporter to promise confidentiality to a source, when a reporter does such a thing he is in effect saying: "If you tell me what I'd like to know, I will put myself on the line. I am committing that I will violate the law, refuse to reveal the information, and subject myself to jail time for contempt of court rather than reveal your identity." That is a daring commitment. Some — especially in the back-slapping orb of major media — regard it as courageous. But there is an unavoidable element of contemptuousness to it, about which we should have eyes wide open. When the reporter sticks to his guns despite a contempt order, he violates the law and it often means that a serious criminal will escape justice.

Essentially, if Taricani told his source, "I'll never reveal your identity," that was a personal promise, not a legal promise. He was committing himself to go to jail if necessary. Now, he's evidently being asked to pay the piper. That's unfortunate, but it's hardly offensive.

— Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.

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