This article originally appeared in Quartz on August 23, 2013.
By Michele Weldon
Like it or not, the honored tradition of confidentiality runs to the core of American government, enterprise, and society.
The purpose of 8,000 acres in the Nevada desert was kept top secret for decades, until the CIA revealed last week that Area 51 did in fact exist. In another recent revelation, the National Security Administration (NSA) was proven to have kept its violations of citizens’ privacy under wraps. This week, a military judge sentenced Army pfc. Chelsea Manning to 35 years in prison for leaking hundreds of thousands of classified government documents to WikiLeaks.
Secrecy has its benefits in many realms, business as well as government. Upholding the sanctity of protected identities and information is a presumption in the daily practices of not only federal agents but also doctors, rabbis, priests, therapists, researchers, bankers, lawyers, teachers, policemen, detectives, diplomats, pharmacists, employers, tax preparers, business partners, hoteliers and even good friends. Anyone who has watched an episode of “The Good Wife” understands the drama in upholding client/attorney.
So why then are journalists barred, on occasion, from this accepted practice of confidential privilege? And why is confidentiality banned in the current case of James Risen, the New York Times journalist and author, who has reported on CIA secrets? Risen’s testimony has been subpoenaed (appealed and the appeal rejected) in the federal case of former CIA agent Jeffrey Sterling.
With that move, the presumption of confidentiality has been brutally breached. In the meantime, Risen continues his reporting on government domestic surveillance and security leaks as a reporter for the New York Times. In light of the government’s rigorous defense to maintain its own boundaries of confidentiality, the federal quest for Risen’s testimony appears to be a widening contradiction.
It is true that you can reasonably expect your grades, sins, diagnoses, criminal confessions, tax forms, work records, prescriptions and hotel room numbers will be kept from public view. At least in most of these cases, you can sleep at night believing your information will not be made public and your privacy violated.
But the 4th US District Court of Appeals’ demand last month for Risen to testify in US v. Sterling, tramples not only the abilities of journalists to gather information in a free democracy with impunity, but counters the protections government normally assigns elsewhere, and particularly to its own agencies and agents.
By vigorously defending the use of drones while defying the NSA leaks by Russian-supported fugitive Edward Snowden, President Obama demonstrates that he upholds the need for government to hold tight on information security. The pushback on Risen also appears to contradict the Department of Justice’s “Report on Review of News Media Policies” released last month that stated the goal to “strengthen protections for members of the news media.”
This mission appears untrue in Risen’s case and also hypocritical. On all levels, the government requires confidentiality in most of its dealings. The government upholds the reinforcement and support for the fragile, critical nature of unnamed sources and secret documents in a myriad of arenas.
The Drug Enforcement Administration (DEA) not only protects confidential sources, but actually pays them.The identity of witnesses is kept secret in grand jury proceedings. The Department of US Health and Human Services issues a certificate of confidentiality to protect researchers from disclosing the identity of research subjects—even in litigation—according to a recent issue of American Journal of Psychiatry.
It is true that without such strongholds on sensitive information, outcomes may be derailed and risk elevated for individuals, communities, even countries involved.
US Secretary of State John Kerry’s diplomatic mission was recently compromised when he publicly promised the nature of talks would remain secret between the Palestinian Liberation Organization and Israel, and then a short while later the content of the private talks appeared in the media. When confidentiality is violated, what implodes is the delicate balance of diplomacy, fair negotiations, national security, and possibly, world peace.
Kerry’s predecessor suffered from similar breaches of confidentiality and damned the divulgences. In a November 2010 press conference on the Wikileaks crisis, then-Secretary of State Hillary Clinton confirmed this: “In almost every profession—whether it’s law or journalism, finance or medicine or academia or running a small business—people rely on confidential communications to do their jobs. We count on the space of trust that confidentiality provides. When someone breaches that trust, we are all worse off for it.”
Yes, it appears ironic then that the government would not fervently protect this journalist in this case—or at the very least, as a rule, insulate journalists from mandatory disclosures that would chill the news-gathering process.
It is almost amusing that a university professor cannot tell the mother of a son failing her class his fate (thanks to the protections of FERPA), but the Justice Department can demand that an author disclose the contents of an interview for his 2006 book.
As Matt Carlson wrote in the 2011 On The Condition of Anonymity, “Journalism presents its role not merely in the relay of authorized messages, but in culling unauthorized information.”
Agreed. The transaction of passing information from source to reporter is sacred. In order to preserve the free flow of unvetted and untampered information from sources, journalists must be guaranteed the same considerations and rights to confidentiality at least afforded to any college instructor or cop.
Of course there are exceptions when a journalist’s need for confidentiality may be trumped by other concerns of public value—national security, the life and death of individuals, or key evidence in criminal cases. But none of those are true in Risen’s case.
Certainly I am not a legal scholar or information security expert. But I have been a journalist for more than three decades and have taught the fundamentals of journalism for the past 17 years at the Medill School at Northwestern University. What I know is that in order to discover news freely, gather information necessarily and report it responsibly, a journalist must rely at times on maintaining source confidentiality within guidelines and with transparency about the nature of the agreement.
The deliberate disintegration of journalist confidentiality leads to a lack of trust in media. Will sources only then be official and approved? The fallout is no less catastrophic than the demise of independent, free journalism and the impossibility for a full democracy.
Besides, what works on a daily basis for a doctor, hotel clerk or federal agent should work at least as often for a journalist.
- Michele Weldon is an assistant professor emertia of journalism at Northwestern University.