Taking the Fifth

When journalists threaten our right to remain silent.

December 2004 may go down in history as the month it suddenly became fashionable to threaten and even punish American reporters with jail. You could make a plausible case that over just three days, December 8–10, there was more serious judge-on-journalist action than in the three decades prior to George W. Bush's first oath of office:

December 8. Time's Matthew Cooper and The New York Times' Judith Miller appeared in federal court to appeal an October contempt-of-court ruling. The judgment threatens both with 18-month prison sentences for not complying with a special prosecutor's order to cough up the sources who told them that Valerie Plame, wife of Bush administration critic Joseph Wilson IV, was a CIA agent. Miller hadn't even written an article about Plame.

December 9. Jim Taricani of NBC affiliate WJAR-TV in Providence, Rhode Island, was sentenced to six months of house arrest for refusing to tell a federal judge where he got an FBI surveillance videotape of a local mayoral aide accepting a $1,000 bribe. Taricani's source, an attorney who represented a city tax official, had outed himself the week before, but the judge said he wanted to send a message that "reporters do not have complete authority to decide when sources can be kept secret."

December 10. The Washington Post, citing "officials," revealed details about a previously secret and congressionally unpopular $9.5 billion spy satellite program, prompting the National Reconnaissance Office (which oversees defense satellites) to call for a Justice Department investigation into the leak.

Compare that to 1970–2000, when—according to the Reporters Committee for the Freedom of the Press, which has surveyed the issue extensively—no American journalist spent "any significant amount of time behind bars" for refusing to divulge a confidential source.

December's splashiest leak came from the world of baseball, where the secret grand jury testimony of seven-time National League Most Valuable Player Barry Bonds was published at length in the San Francisco Chronicle, triggering an anti-steroids outcry from the Golden Gate Bridge to the White House. In response to the Chron's chronic leakage, U.S. Attorney Kevin Ryan requested a formal Justice Department investigation to hunt down the illegally loose lips. Three Chronicle reporters already have received subpoenas, and editor Phil Bronstein has vowed to defy any judicial source-disclosure order.

"The First Amendment...allows us to publish stories we feel are of interest to the public," Bronstein wrote in a December 12 note to readers. "That's the same right that allows you to express yourself freely....The public's right to know is basic to our democracy and one of the few tools the public can wield to challenge and respond to the power of government. The major tool is the Constitution."

Bronstein, like many editors criticizing the recent wave of government pressure, had it almost exactly backward. Under current law, reporters' ability to shield sources from the long arm of the law is not a federal right for all Americans but a privilege granted in 31 states and the District of Columbia to the limited category of human being known as "journalist." And by wearing the First Amendment like a badge, Bronstein is neatly evading his role in helping the government eviscerate another part of the Bill of Rights. The amendment that's really under assault is not the First but the Fifth.

Besides putting pressure on journalists, the Bonds, Plame, and Rhode Island cases have one crucial element in common: Each is the direct result of the federal government's extraconstitutional prosecutorial power run totally amok.

All three are federal grand jury cases. As Timothy Lynch, Thomas Dillard, and Stephen Johnson argued persuasively in a May 2003 Cato Institute paper (cato.org/pubs/pas/pa476.pdf), "the government has been using the façade of the 'grand jury process' to subvert the Bill of Rights—especially the Fourth Amendment's ban on unreasonable seizures of private papers and the Fifth Amendment's ban on compulsory examination under oath."

The Fourth Amendment requires law enforcement to demonstrate probable cause to an independent judiciary before searching a suspect's person and property or seizing his assets. A grand jury—which is supposedly a citizen fact-finding body charged with determining the likelihood of a crime but in reality more resembles a fishing expedition dominated by a federal prosecutor—can unilaterally issue subpoenas to seize any assets and compel testimony from any witness.

The Fifth Amendment prohibits the government from compelling testimony that could be self-incriminating, and the Miranda decision gives felony suspects the right to an attorney. But grand jury witnesses—at least those who don't make immunity deals prior to their testimony—typically don't know if they are suspects until after the hearings. In the meantime they can be forced to answer any question, without a lawyer present, under penalty of prison, and are subject to self-incriminating "perjury traps" if they should demonstrably fudge the truth under oath.

Now journalists are joining their fellow citizens as targets. Before the current administration, extraconstitutional grand jury prosecution powers were used sparingly against news organizations. According to the Justice Department, only 17 federal subpoenas were issued to unearth journalists' confidential sources between 1991 and September 6, 2001. That number may have been surpassed in 2004 alone, when in addition to the cases listed above, six reporters were found in contempt of court for refusing to name sources who cast aspersions on former Los Alamos scientist Wen Ho Lee.

The Lee case, like many of the others, has been cheered on by various newspaper columnists and other media pundits, who routinely fail to note (let alone criticize) the adverse side effects of giving the government ever more prosecutorial power. As Washington Post columnist Richard Cohen commented in December about the Plame grand jury, "The press, alas, is getting what it wanted."

The Plame case is a festival of unintended consequences. As former Reagan administration official David Rivkin and lawyer Bruce Sanford observed in a sharp December 14 Wall Street Journal op-ed, the grand jury in that case has been convened to enforce one law, the Intelligence Identities Protection Act of 1982, that was aimed at double agents who rat out operatives to the enemy, and it had been used in just one successful prosecution in 22 years.

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