Take the Fifth
Reporters are looking to the wrong amendment to protect them.
Our attorney general, Alberto Gonzales, has stated publicly that he believes journalists may be prosecuted under federal espionage laws for publishing articles based on leaks of classified information. His comments, in an ABC News interview, were directed at reporters from the New York Times (for its disclosures about the NSA's warrantless eavesdropping) and the Washington Post (for stories about foreign countries' assistance in the CIA's "extraordinary renditions").
He didn't intend it, but the AG's threats may have given reporters at the Times, the Post—and at the Los Angeles Times, the San Francisco Chronicle and other news organizations looking down the barrel of federal leak investigations—a powerful defense to the government's inevitable demands (backed by grand jury subpoenas) that they identify their confidential sources:
They can "take the Fifth."
For the past two years, the journalism community has been fixated on the shortcomings of the First Amendment as a source of protection for reporters' confidential sources. One federal appellate court after another has rejected assertions of a "reporter's privilege," grounded in the First Amendment, to refuse to testify about anonymous sources—culminating in the Supreme Court's decision last year not to review contempt judgments against reporters Matthew Cooper (of Time magazine) and Judith Miller (then of the New York Times).
But journalists have been so mired in the debate about the First Amendment protections they lack, that they have overlooked the protections the rest of the Constitution might afford. Because if the First Amendment can no longer be counted upon to keep reporters out of jail, invoking the Fifth Amendment privilege—refusing to disclose the name of a confidential source because doing so could be self-incriminating—may well succeed in protecting both the source and the reporter. (Although most states, through shield laws, also provide journalists some degree of confidential-source protection, those laws are of no help in federal proceedings and investigations.)
Until Gonzales started musing publicly about news organizations' criminal exposure for leaks of classified information, the risk of an indictment of reporters might have been too remote to permit a reporter to invoke the Fifth Amendment to refuse to testify about sources. Those espionage statutes have never been used against journalists, and for good reason: Such prosecutions would be tantamount to adoption of an Official Secrets Act, something that Congress, in modern times, has always been loath to do.
But times have changed. The risk of prosecution is not remote anymore. And if the country's top lawyer is willing to say so publicly, journalists should probably take him at his word.
The Fifth Amendment has gotten a bad rep because of its long association with organized criminals and corrupt public officials—and because of the common perception that, by pleading the Fifth, one is implicitly admitting guilt. In fact, the Fifth Amendment does not so much imply guilt as it does a refusal to be of assistance to the government in meeting its burden of proving guilt. Why offer to help a prosecutor who is intent on putting you in jail?
But even if the implication of guilt is unavoidable in some cases, one has to ask, guilty of what? In the case of subpoenas to James Risen and Eric Lichtblau, the New York Times reporters who wrote the NSA wiretapping stories, relying on the Fifth Amendment to refuse to testify would imply that they are merely "guilty" of:
–obtaining evidence of a domestic surveillance program
–that was authorized by the president
–yet conducted without the judicial oversight required by applicable federal law
–and then reporting this information in the pages of a national newspaper.
If that is an admission of guilt, then Risen and Lichtblau should wear it as a badge of honor. By invoking the Fifth Amendment, they would be admitting that they did their jobs.
Of course, the Fifth Amendment will be of no avail if the government, in order to preserve the prosecution of reporters' confidential sources, is willing to forgo prosecuting those reporters. In other words, prosecutors have the option of granting formal immunity to reporters. Once immunized, reporters may not continue—on Fifth Amendment grounds—to refuse to testify about their sources since their risk of being prosecuted will have been removed.
Nonetheless, for reporters to even obtain immunity in the current circumstances would be a victory in itself. In the face of Gonzales' bluster about indicting the press under the espionage laws, the Justice Department would not be thrilled about having to immunize the press. And obtaining immunity would leave reporters no worse off with respect to protecting confidential sources under the First Amendment or any other legal theory available. Those arguments would be unaffected by a grant of immunity.
In the coming months, as the New York Times, the Washington Post, and the San Francisco Chronicle all face down federal criminal-leak investigations, they should be thankful for Attorney General Gonzales' saber-rattling.
Let's just hope he makes more threats to prosecute the media.
Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition, www.cfac.org.
Illustration by Robert Neubecker.