Anonymous Sources: Their Use in a Time of Prosecutorial Interest

The traditional government concern about leaks of information has taken a new turn. Journalists, including me, have been put in the middle of highly publicized criminal investigations and civil cases based on leaks. On July 12, 2003, an administration official, who was talking to me confidentially about a matter involving alleged Iraqi nuclear activities, veered off the precise matter Protecting confidential sources, who provide me with material for many
of the intelligence stories I write, is a key factor that enables me to write the stories I do about national security.we were discussing and told me that the White House had not paid attention to former Ambassador Joseph Wilson’s CIA-sponsored February 2002 trip to Niger because it was set up as a boondoggle by his wife, an analyst with the agency working on weapons of mass destruction.

I didn’t write about that information at that time because I did not believe it true that she had arranged his Niger trip. But I did disclose it in an October 12, 2003 story in The Washington Post. By that time there was a Justice Department criminal investigation into a leak to columnist Robert Novak who published it on July 14, 2003 and identified Wilson’s wife, Valerie Plame, as a CIA operative. Under certain circumstances a government official’s disclosure of her name could be a violation of federal law. The call with me had taken place two days before Novak’s column appeared.

I wrote my October story because I did not think the person who spoke to me was committing a criminal act, but only practicing damage control by trying to get me to stop writing about Wilson. Because of that article, The Washington Post and I received subpoenas last summer from Patrick J. Fitzgerald, the special prosecutor looking into the Plame leak. Fitzgerald wanted to find out the identity of my source.

I refused. My position was that until my source came forward publicly or to the prosecutor, I would not discuss the matter. It turned out that my source, whom I still cannot identify publicly, had in fact disclosed to the prosecutor that he was my source, and he talked to the prosecutor about our conversation. (In writing this story, I am using the masculine pronoun simply for convenience). My attorney discussed the matter with his attorney, and we confirmed that he had no problem with my testifying about our conversation.

When my deposition finally took place in my lawyer’s office last September, Fitzgerald asked me about the substance of my conversation about Wilson’s wife, the gist of which I had reported in the newspaper. But he did not ask me to confirm my source’s identity, which was my condition for being deposed. My original understanding with my source still holds—to withhold his identity until he makes it public, if ever.

Confidential Sources

Protecting confidential sources, who provide me with material for many of the intelligence stories I write, is a key factor that enables me to write the stories I do about national security. Sometimes I am given or sent a document that is classified, or sources—either on their own or through answering questions—provide information that is classified.

How do I decide when to publish such information provided by a confidential source?

There are at least three issues involved, and they include: 1. Determining whether the information is credible and verifiable. The most important issue involves my analysis of why the source provided the information in the first place and, of course, verifying its accuracy. Many times during the past 40 years, a source wanting confidentiality has provided information and sometimes even documents that have proven to be untrue or taken out of context. Information that is to be attributed to anonymous sources has to be checked more closely than any other type of material. 2. Determining whether the material is newsworthy. Just because it appears to be a secret and the source wants anonymity doesn’t mean it is worth printing. 3. Determining whether in the case of classified information it truly harms national security. And based on that analysis, there have been times at The Washington Post when we have decided not to publish such information.

When we do publish stories based on leaks, we risk getting subpoenaed. If that occurs, a reporter might have to confront questions about the nature of the reporter’s privilege. It is called a reporter’s privilege, but once I publish information from a confidential source who has risked firing or even jail to give me the information, I believe the privilege of keeping his or her name secret belongs both to the source and to me. That source, after getting a confidentiality pledge from me, can disclose that same information within hours to another reporter for attribution. The source could also go to a prosecutor in private, disclose that he or she has talked to me and provide the substance of the conversation. I could hardly claim the privilege to that same prosecutor, if I am directly assured that the source is releasing me from my pledge.

In states in which shield laws apply, reporters may not have to face questions about revealing sources, and sources may be protected. This includes even those who pass along wrong or inaccurate information, and I am concerned about that possibility—which exists in other privileges recognized by law to serve the public interest. Shield laws do prevent lawyers from freely subpoenaing reporters to do their investigative work for them. And such laws certainly prevent harassment of journalists.

But no matter what legal protections exist, journalists should pause before handling information received from people who demand anonymity. Reporters should avoid promising anonymity to sources if it is being offered simply to encourage the source to say something in a dramatic or damaging way that the source would not say on the record. This use of anonymity harms the profession and diminishes the value of the confidentiality given to those who are whistleblowers—people who risk their jobs and jail for what they may believe is a higher cause.

Walter Pincus reports on national security issues for The Washington Post.