Wavering on waivers

Reporters face difficult decisions when assessing the validity of waivers from confidential sources.

From the Fall 2007 issue of The News Media & The Law, page 14.

By Matthew Pollack

This summer, six journalists were ordered to disclose who in the FBI or the Justice Department told them that Dr. Steven J. Hatfill was being investigated in connection with the 2001 anthrax attacks. Hatfill, a physician who had worked at an Army laboratory where the strain of anthrax used in the attacks was once studied, filed a lawsuit against the government under the federal Privacy Act, seeking damages for the “intentional and willful” leaking of his name.

Now the journalists – Newsweek’s Michael Isikoff and Daniel Klaidman, ABC’s Brian Ross, The Washington Post’s Allan Lengel, CBS’s James Stewart and USA Today’s’ Toni Locy – find themselves facing a difficult decision.

They must choose between refusing to testify and risking a contempt finding (along with potentially heavy fines or even jail time), breaching their promises of confidentiality by identifying their sources or seeking waivers releasing them from their agreements. 

The judge though, doesn’t see a reason why the journalists should beleaguer their decision, pointing to the court-directed confidentiality waivers signed by more than 100 FBI and Justice Department employees. 

In his Aug. 16 decision, U.S. District Court Judge Reggie B. Walton asserted that the employees voluntarily signed the waivers, which had been agreed upon by the parties to the suit.

All of the reporters, however, have refused to recognize the legitimacy of the waivers, questioning whether they effectively relieved them of their promise of confidentiality since they were not consulted before they were sent out and had no input as to their content.

“When waivers are being circulated by attorneys for somebody’s employer, that raises legitimate questionsas to whether any waiver is free and willing,” said Nathan Siegel, an attorney representing Stewart. 

Siegel said that the waivers in question in this particular case are especially problematic, but typical of a growing trend of blanket waivers that subpoenaed reporters may face.

“It’s not a real waiver,” Siegel said of the forms. “The waivers themselves are abstract; they don’t even purport to say what specifically is being waived.”

Peter Scheer, the executive director of the California First Amendment Coalition, says the facts of the case typify the unreliability of the blanket waivers imposed by the court. If a government employee refuses to sign the waiver, superiors may suspect that they were the source of a leak. But signing also opens up a leaker to significant risk.

“Why would a government source have voluntarily released reporters from a promise of secrecy knowing that doing so would incriminate them?” Scheer asked. “It is hard to see these as being anything but coerced.”

Instead, Scheer argues that reporters should treat these blanket waivers as presumptively invalid, a presumption that can only be overcome once the reporter returns to the source and gets willful and knowing consent to testify.

Ironically, Hatfill’s attorneys began their pursuit of the government leakers hoping to avoid a prolonged First Amendment dispute.

Hatfill’s legal team initially did not try to force the journalists to identify their sources. But when Walton told the scientist’s lawyers that they were likely to lose the Privacy Act suit if they did not establish the actual identities of the leakers, Hatfill subpoenaed the reporters.

Two years later,the reporters find they are still enmeshedin a battle over these sources.

Although at least two previously anonymous government contacts have identified themselves to Hatfill’s attorneys, several others have yet to come forward. Stewart and Locy each identified some but not all of their sources after receiving additional waivers. 

Stewart identified one FBI official and Locy’s attorneys identified an FBI official and a former Justice Department official. Stewart continues to refuse to reveal three other FBI sources and Locy refused to reveal any of her remaining contacts, Hatfill’s attorneys wrote in their October contempt motion.

Of course, the issue of the effectiveness of these types of confidentiality waivers is not new; it featured prominently in both the Valerie Plame investigation and the Wen Ho Lee case.

In the Plame investigation, the White House required employees to sign a waiver releasing members of the press from any promises of confidentiality. 

Reporters Matthew Cooper, Judith Miller and Walter Pincus ultimately testified before the grand jury during the investigation, but they also categorically rejected the validity of the written waivers encouraged by the White House.

“I didn’t regard it as a serious waiver,” Miller said. “There’s nothing voluntary about a waiver that your boss asks you to sign. When someone in the government says ‘I order you to cooperate with this investigation,’ it is the opposite of voluntary.”

Instead, all three turned to some form of supplemental waivers such as the one described by Scheer before divulging their sources.

Time’s Cooper, who was initially held in contempt after he refused to identify his source despite a signed waiver, testified only after I. Lewis “Scooter” Libby provided him “personal, unambiguous, unreserved approval” of his testimony.

Miller, then a reporter for the New York Times, likewise faced a contempt charge and spent 85 days in jail before receiving a satisfactory waiver and identifying Libby as her source.

Miller refused to testify until she received a personal, written waiver from Libby and had the opportunity to speak directly to him regarding his motives.

“I had to make sure that this is really, really what he wanted me to do,” Miller said, noting how difficult it to determine the voluntariness of the waiver in a litigious situation where somebody’s job or personal freedom is on the line.

Washington Post reporterPincus avoided a contempt charge and received little attention when he testified in the Plame investigation, but likewise agreed to cooperate with investigators only after arranging a waiver from his source through his attorney and agreeing to limit the scope of his testimony.

But some say that blanket waivers may be something that journalists will have to address more directly.

The increased frequency with which courts have turned to government-directed waivers indicates to Ronald Collins, a First Amendment scholar at the Freedom Forum, that reporters may have to change the conversation they have with confidential sources to include a discussion on blanket waivers.

“It will become part of the discourse that the source and the reporter will discuss what will happen if the court requires a waiver,” Collins said. “In order for the reporter to stand on the privilege I think he would have to make the inquiry. Today it’s certainly something that will occur to the source when he considers talking to a reporter.”

The issue arose again when attorneys subpoenaed Pincus in the trial of Wen Ho Lee, another Privacy Act case where a former Los Alamos nuclear scientist sued the government for identifying him as a suspect in an on-going investigation.  

Seeking to “avoid a repetition of the Judith Miller imbroglio,” Judge Rosemary Collyer sidestepped the concerns presented by government-directed waivers and ordered Pincus to contact each of his sources to see if they would release him from confidentiality pledges he made while reporting on the Lee investigation.

Collyer’s order sought to avoid any concerns that the waivers were coerced by the government.  The results of Pincus’ requests were telling; compared to the 100-plus government employees who signed court-directed waivers in the Hatfill case, only one of Pincus’ sources agreed to waive confidentiality. 

Ultimately, the federal government and five media organizations agreed to pay Lee more than $1.6 million to settle allegations that government leaks violated his privacy, in part at least to continue protecting the identity of their sources.

Others contend that reporters should always refuse to identify their confidential sources, even where the source has provided the kind of waiver that Cooper, Miller, Pincus, Locy and Stewart found acceptable.

Vanessa Leggett, a freelance writer who served 168 days in jail for refusing to testify before a federal grand jury, said she fears that altering confidentiality agreements will cut important news off at the source.

“A promise is a promise,” Leggett told the American Journalism Review.  “In the future, if sources think a promise is a quasi-promise, they’re not going to come forward. The more compromised the privilege becomes, the less people are going to come forward.”