Protecting confidential sources is one of the most cherished cornerstones of American journalism.

On Saturday evening I saw a rather strange exchange between Robert Novak and Al Hunt on Capitol Gang. Novak stated that CBS should release its sources on the questioned documents about Bush’s Guard service. When pressed by Hunt, Novak declined making release of sources a general rule for journalists.



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http://199.249.170.220/eandp/news/article_...t_id=1000628458

Questions for debate:

1. Should CBS release its sources for the questioned Bush National Guard service documents?

2. Considering Novak’s comment, should he release his source who “outed” Valarie Plame?

3. Is protection of confidential sources an absolute in journalism?

1. Should CBS release its sources for the questioned Bush National Guard service documents? It would be good if the sources were forthright enough to come forward to stand behind the documentation they provided. But I understand the possible repercussions should they do so. CBS should honor the confidentiality they promised to the sources unless it constitutes a breach of national security, and I don't know how it would.

2. Considering Novak’s comment, should he release his source who “outed” Valarie Plame? I do not think Novak really has a right to shake his finger at CBS in this case. His outing of a CIA operative did constitute a breach of national security; therefore the argument is stronger in his case to reveal his source(s).

3. Is protection of confidential sources an absolute in journalism? If someone approached a journalist and said (s)he planned to assassinate a public figure, murder somebody, or detonate a device and take out a section of the population, a journalist would, I believe, be obligated to go to the authorities and divulge whatever information necessary to thwart the plan. Anything less than that--it's hard to say.

Should CBS release its sources for the questioned Bush National Guard service documents?

No more than Novak should.

Considering Novak’s comment, should he release his source who “outed” Valarie Plame?

Nope.

Is protection of confidential sources an absolute in journalism?

IMO yes with PE's reasonable exceptions. I wanted to see heads roll when the story about the story with the leak came out. Operative word being "wanted." A journalist's right to keep a source anonymous while annoying and frustrating, is inviolable. Being the a-typical pinko traitor I sided with Novak's right to keep contacts to himself even at the (hopefully) negligible risk of harm to Plame and others in light of conflicting reports from admittedly conservative-leaning articles questioning how important an operative she was. I don't have to like it but you can't negotiate both sides in this case.

It's unfortunate Novak tried to pull impartiality off. I like his opinion columns, even with the subtle jabs at liberals and now-and-then populist slip-ups when things don't bode well for Bush. I can add Hypocrite to his titles of achievements.

Should CBS release its sources for the questioned Bush National Guard service documents?

Yes. See below.

Considering Novak’s comment, should he release his source who “outed” Valarie Plame?
No, his comment has nothing to do with it. See below.

Is protection of confidential sources an absolute in journalism?
Yes, absolutely. The reason that Nowak should protect the Plame source is that this was a fact. Plame was indeed a CIA agent, who did indeed at least make a phone call regarding her husband going to Nigeria. Only her level of involvement is disputed, that there was some involvement is a fact. And the fact that she was CIA was apparently not a well-kept secret in Washington, either, something not mentioned when discussing the leak.

But... The CBS documents are forgeries. This was proved on the internet in about 45 minutes, and it is so obviously true that even partisan sources can no longer ignore it (Boston Globe, Juan Williams, NY Times, ABC, etc. etc. etc.) The secretary that would have typed it didn't have that typewriter, and said that these were forgeries. And she is a complete anti-Bush partisan. CBS' defense - they are now spinning that the docs are forged but represent 'real documents that existed at the time' - why would I trust this?

The simple fact that these are forgeries undermines the whole journalistic integrity thing. I could write absolutely anything at all - some ridiculous slander against a public figure (preferably a republican). Then, some "Operative" at MoveOn.org will slip my "authentic" document to Dan Rather, and he airs it on the news. Then, by complete coincidence, the DNC will run a TV spot featuring the story that my document backed.

He has no right to protect the source. He was either duped or wilfully dishonest. Either way, there is no honest source to protect.

You're certainly not serious when you state this, are you? If it is just an overstatement and exaggeration for the sake of making a point, then that can be overlooked. But if you intended this statement as some kind declaration of truth then you are quite mistaken.

There are no inviolable privileges. None. Zero. Zilch. Every privilege that has been codified into state evidentiary laws (priest-penitent, spousal, doctor-patient, attorney-client) are there to serve certain public policy goals. They are not touchstones of inviolable truth. Therefore, to the extent that there is a greater public policy to be served by disclosure, then even attorney-client privileges may be disclosed. There is a health body of legal doctrine and opinion on matters of privilege.

The Branzburg decision in 1972 expressly disallowed "journalist" privilege in grand jury proceedings. The decision did not speak to non-confidential sources of information, and consequently, states have reacted in very fractured ways in implementing "Shield Laws" to balance journalistic requirements with the demands of full disclosure. There is a wide range of protections: from the very little to the very protective.

However, the bottom line is that there is no constitutionally protected privilege allowing a journalist to protect his sources. There are some state statutes that serve this purpose, but that is a statutory protection, not a constitutional one. There is a huge difference.

I am declining to respond to the first two questions as those are fact-specific and would require much lengthier replies. I am only posting in response to the third issue, whether the protection of confidential sources is absolute. That answer is of course: no, not even close.

Novak should play by the same rules he wants Rather to play by. As far as an iviolable right, let's leave inviolable to only those things that MUST be that (i.e., attorney-client privilege, doctor-patient, etc.)

Strangley, issues that seem to reflect possible Republican maneuvering, direction and involvement (Plame, Swift Boat Vets for Truth, Enron, Abu Ghraib, WMDgate, and the TRMPAC Indictments) seem to be put off for a longer period of time than those that might show similar activities on the part of Democrats.

The long-shouted cry of "Liberal Media Bias" has been effectively compensated for by Talk radio and Cable "News" shows.

There is a RUSH to lynch CBS and Rather. Martha Stewart has already been tried but they're still picking the jury for Enron and the real damning evidence or lack of it with regard to the possible White House links to an energy grid scheme will come long after November 3rd.

I'm tired of ALL politicians and wish the tax deduction method of campaign finace were the only vehicle for such. I might even support a TAX for that one single purpose!

1. Should CBS release its sources for the questioned Bush National Guard service documents?

Yes. I am not sure why you would want to protect someone that provided you information that can not be substantiated. If I was CBS, I would out them in a moment and get half of this monkey off of my back.

2. Considering Novak’s comment, should he release his source who “outed” Valarie Plame?

Not considering his comment, but considering that a crime has taken place. Novak should be charged with Harbouring a criminal.

3. Is protection of confidential sources an absolute in journalism?

I think that it is important that journalists should be able to hold their sources in confidence unless a crime has been committed. At that point, the journalist should be required to divulge his/her source or face prosecution.

Case in point:

A journalist is told that there is a murdered body under the bridge just outside of town. The only person that knew about the body was the murderer. Should the journalist have protection under the law that would allow him to keep the identity of his source, the murderer, to himself? God I hope not, however......you might see it differently.

As inviolable as free speech and fire in the cinema, a right to life and a date with Old Sparky. I was going to respond with the Espionage Act of 1917 since you postulated but I just learned Novak won't comment whether his testimony has been sought on the Valerie Plame investigation headed by Attorney Patrick J. Fitzgerald. Meanwhile Fitzgerald is slapping subpoenas more vigorously than a man who forgot to stop, drop, and roll.



Novak's source committed a federal crime. The intentions of Novak's source may not figure into his/her defense. Reagan successfully argued under the EA the act of leaking information was enough to warrant Samuel Morrison's imprisonment. Rather on the other hand anchored a story based on forged documents that don't threaten national security nor did he commit a crime per say. CBS could be taken to task in civil court for libel if that's what Bush wants. His lawyer would have to prove to the judge that it is imperative to the suit that Rather is subpoenaed for purposes of revealing his source. Subpoenaing ISPs has met limited success. I'm not sure there's a precedent for subpoenaing a journalist in a libel suit and making it stick.