Rule May Curb Press’s Use of Secret Sources

A new federal policy to prosecute federal employees who leak certain kinds of information to the press not only could inhibit whistle-blowing about government abuse, but also could pose a direct threat to reporters’ use of confidential sources, legislators and free-speech attorneys said Thursday.

The new policy, announced by the Justice Department on Wednesday, reverses department guidelines dating back 11 years that were designed to protect government whistle-blowers in the wake of the Watergate scandal and revelations of CIA misconduct.

The guidelines restricted the use of federal statutes against stealing government property, as long as the information was not obtained in violation of wiretapping statutes or by trespassing.

John C. Keeney, a deputy assistant attorney general, said in written testimony to two House Judiciary subcommittees Wednesday that the Justice Department had decided to alter its 11-year policy. He said the department would begin to prosecute people who disclose information about federal criminal investigations.

In addition, Keeney said, the government “would now consider prosecution of government employees” whose disclosures violate other federal statutes. Among these laws he named the Privacy Act, which is designed to protect damaging information about private individuals.

The subcommittees are investigating leaks about an FBI investigation of staffing practices in the office of Rep. William H. Gray III (D-Pa.).

Although Keeney’s testimony caught legislators by surprise, critics were saying by Thursday that the effects of the Justice Department’s new policy might be profound.

“We could be on the verge of one of the biggest crises in reporters privilege that we have seen in 20 years,” said Jane Kirtley, executive director of Reporters Committee for Freedom of the Press.

The use of anonymous sources has become a way of life to the Washington press corps, and Bruce W. Sanford, attorney for the Society of Professional Journalists, called it especially valuable to the reporting of government abuse. Confidential sources were crucial to reporters on such stories as the Iran-Contra scandal and the ethical troubles of former Atty. Gen. Edwin Meese III.

Keeney’s vagueness about which types of leaks might be prosecuted led his critics to warn that the Justice Department policy is a prescription for selective prosecution. The department, they said, could ignore the leaks of senior policy-makers and pursue only those cases that they considered politically damaging to the Administration.

“The question is whether they in fact intend to broaden it and intend to use it as an official secrecy act, whenever they see fit,” said Leslie Harris, legislative counsel at the American Civil Liberties Union. “We are going to be taking a look at this very carefully.”

“I am worried that this policy is so broad it could easily be abused,” said Rep. Charles E. Schumer (D-N.Y.). “Whistle-blowers could be prosecuted on political whim.”

Thornburgh Defends Policy

At a press conference Thursday, Thornburgh defended the policy by emphasizing how damaging he considers leaks to be. Leaks to the news media that are accurate “have a tendency to compromise ongoing investigations,” he said. “If they are inaccurate, they have a tendency to unjustifiably smear the reputations of persons who are the subjects of the leaks.”

In the case of the disclosure of the investigation involving Gray’s office, a federal grand jury in Washington under the direction of a Justice Department prosector has even questioned key officials of Thornburgh’s own staff, including his chief spokesman, David Runkel.

But critics of the new policy consider Thornburgh’s position on leaks to be either disingenuous or politically motivated.

“Federal prosectors generally live by the selective leak,” said Kirtley, of the Reporters Committee. “They tell people about ongoing investigations whenever they feel like it. It is standard operating procedure for anyone on the prosecution side.”

So to say that the Justice Department will start prosecuting people for leaking, Kirtley said, “is rank hypocrisy.”

Thornburgh also said in his press conference that he does not intend to prosecute reporters under the new policy for receiving leaked information.

But critics said the policy inevitably will lead to a growing number of grand jury subpoenas of reporters in attempts to learn their sources. Kirtley said that, if the government intends to prosecute leakers, “what inevitably that means is journalists will be called upon to identify their sources. This is a very invidious threat to the First Amendment.”

“The real danger is that the ability to criminally prosecute for unauthorized disclosures might dilute a journalist’s claim to confidential sources,” said Allan Adler, an attorney with the communications law firm of Cohen & Marks.

Courts have ruled that the Constitution provides reporters limited protection for confidential sources. In the case of Branzberg vs. Hayes, the Supreme Court found that, although journalists have an obligation to cooperate with government and police investigations, the government should at least demonstrate that the identity of the confidential sources is material to its case and that it has no alternative means of getting the information.

Subpoena Rule Remains

In addition, Justice Department guidelines instituted during the Richard M. Nixon Administration hold that the attorney general must personally approve the subpoena of any reporter to ask for his sources.

Under the new policy, that would not change, spokesman Runkel said in an interview. “Those matters--the subpoena of a reporter and a reporter’s records is a decision which will continue to be made by the attorney general,” and “will continue to be a case-by-case review depending upon the seriousness of the matters that arise.”

Presumably, attorney Adler said, the number of cases that the attorney general would have to decide would increase.

In large part, attorneys said, the new policy is part of a trend that began during the Ronald Reagan Administration in the prosecution of former naval intelligence analyst Samuel Loring Morison, who was convicted on charges of theft and espionage for giving secret photographs to a British military journal.

One of those counts involved the same statute that Thornburgh has focused on to prosecute leakers, theft of government property.

Previously, the case law on this statute was in conflict and it was unclear that there was a precedent to consider disclosing information as stealing it.

Nonetheless, the threat of such prosecution to try to inhibit leaks is not new. The confidentiality agreements that many government employees sign includes a paragraph saying that they are subject to such prosecution.

Staff writer Ronald J. Ostrow also contributed to this story.