The American Spectator

Media Matters

In his latest book The Secret Man, Bob Woodward recalls that some years after Watergate he was approached by Washington Post colleague Richard Cohen. According to Woodward, Cohen had decided on his own that Mark Felt was Deep Throat and intended to say so in an upcoming article. "I lied, and insisted to Cohen that he had it wrong. W-R-O-N-G! I spelled it out, I recall," he writes. "Sorry, Richard." That Woodward would do everything within his powers to protect Felt is understandable, and considering the pressures and passing of time, his loyalty is to be applauded. But his willingness to actively lie to his readership in order to protect Felt is disturbing. The public puts its trust in reporters: if journalists feel as comfortable lying on the record as politicians do, will we need to invent a fifth American Estate?

Time will tell how Post readers react to the revelation that Woodward deliberately misled Cohen. But it isn't too early to observe the interesting synchronicity between the Deep Throat story and the ongoing Judith Miller-Matt Cooper poli-drama. Benjamin Bradlee, Woodward's editor at the Post, argues the Deep Throat saga "offers proof of the fact that anonymous stories -- anonymous sources can be handled properly and be useful to society, and that when you -- before you throw reporters in jail for keeping their sources anonymous, you'd better be careful.'' According to Cooper, who along with Miller faces an extended stay in D.C.'s notorious temporary lockup, "Felt's announcement is a reminder, once again, that reporters take these confidences seriously."

The confidential relationship between a source and a reporter is quasi-contractual. One provides information to the other in exchange for anonymity, but neither end of the bargain is enforceable in court. The source understands that if the reporter betrays him, he will also betray his own career as well. But though it appears bilateral, there is also a large, usually overlooked, third party beneficiary to this agreement: the reading public, which includes historians, politicians, and journalists. When a journalist uses an anonymous source he certifies to his readers that he has properly vetted and explained any improper motivations, every effort was made to independently confirm the source's claims, and on balance the reader's understanding of the truth is proportionately enhanced in relation to the risk and secrecy involved.

In Woodward's case, it is clear that these standards were met. But that doesn't mean there weren't externalities: Felt was a repeat offender who managed to remain in the FBI for six more years, a serious security breach by any measure. Woodward's general silence also kept many innocent people under an unfair cloud throughout their professional careers. (He did on occasion exonerate former Nixon officials with pending political ambitions.) Perhaps worse of all, Woodward foisted on the public an unnecessary niche industry of Deep Throat speculation.

While Woodward had an obligation not to positively assist others in identifying his source, he had no obligation to assist Felt in further covering his tracks. Timothy Noah at Slate has expressed concern about whether Throat's smoking as described in All the President's Men was a red herring. Felt's family says he quit smoking sixty years ago. Similarly, Woodward once denied that FBI agent Throat was a member of the "intelligence community." Now, in his new book, Woodward admits that he lied to a colleague and frustrated a legitimate and important journalistic endeavor. A reporter cannot betray his obligations to the record in order to preserve his with the source. To do so would turn the entire enterprise of journalism on its head. All of a sudden, both All the President's Men and The Secret Man look a little less reliable as primary sources.

Thirty years later there is yet another security leak in the executive branch, this time an apparently high level White House official who feels comfortable revealing the names of intelligent agents for political advantage (as was Felt's motivation as well). Miller's and Cooper's claim that they made an enforceable moral bargain of silence is laughable: such an agreement could only mean conspiracy to commit a crime. Were it otherwise would create perverse incentives for disgruntled intelligence officers to leak classified material to the press. The only possible witness to the crime would enjoy immunity stronger than that permitted spouses or psychiatrists. And after their spirited defense so far, it is hard to believe nobody would trust them in the future. To the contrary, Miller and Cooper have only burnished their reputation by doing everything within the law not to reveal their source.

Having done so, however, they discharged their contractual obligations. They now have a duty to their fellow citizens to obey a duly appointed federal judge, and through him the laws we have all supposedly agreed to live under. This is not a question, as some would have it, of an overzealous prosecutor, or a crass and arrogant Robert Novak. It is solely a matter of whether Judith Miller believes the law of the United States applies to her or not. The New York Times never tires of reminding its readers that the Supreme Court is the most important branch of the American government. At a time when Congress is actively seeking to restructure the federal courts and restrict their authority, it is strange that America's print media, which relies so heavily on the courts to defend their legitimate First Amendment rights, would be so eager to defy those same courts' writ.

topics:
Law, Supreme Court