A Chill for Whistle-Blowers

Reporters don’t take promises of confidentiality lightly. A complex story often hinges on tips from insiders. And insiders, fearful of retribution, will sometimes talk to reporters only on the condition that their names not be used. Breaking such a promise can jeopardize the source’s job or worse. It also casts a chill over others who may be thinking about blowing the whistle.

So consider the effect that the Justice Department’s subpoena of an Associated Press reporter’s home telephone records will have on whistle-blowers, the press and the public that depends on both for information.

Reporter John Solomon quoted unidentified law enforcement officials in a story last spring about a conversation recorded by a government wiretap of a U.S. senator being investigated. The Justice Department subpoenaed Solomon’s phone records. Three months later, it got around to notifying him of the subpoena.

Law enforcement officials can be prosecuted for disclosing the contents of a wiretap. But the Justice Department was absolutely wrong to turn to a reporter’s phone records to find the leak.

That was hashed out 30 years ago when the Nixon Justice Department tried to subpoena journalists’ testimony and notes.

Under guidelines established then, the Justice Department must first exhaust all alternatives for finding whatever information it is seeking before subpoenaing a reporter or his records. Even then, it must notify the reporter in advance to give him the chance to contest the subpoena in court. That this Justice Department did neither sends a threatening message to others who have information they think the public should know.

Recalling such incidences as Atty. Gen. John Ashcroft’s efforts to prevent interviews with Oklahoma City bomber Timothy McVeigh before his execution, free-press advocates worry that this haste to subpoena reflects an emerging pattern of contempt for journalists’ role. If that’s indeed the case, Americans have reason to worry.

There are places in the world where a government can do what it wants without fear of public scrutiny, where whistle-blowers know better than to talk to reporters. The United States is not such a country because it has a 1st Amendment guarantee of a free and independent press. What about that does the Justice Department fail to understand?