Should We Jail Deep Throats ...

I have little doubt that one of my former Nixon White House colleagues is history’s best-known anonymous source — Deep Throat. But I’ll be damned if I can figure out exactly which one.

We’ll all know one day very soon, however. Bob Woodward, a reporter on the team that covered the Watergate story, has advised his executive editor at the Washington Post that Throat is ill. And Ben Bradlee, former executive editor of the Post and one of the few people to whom Woodward confided his source’s identity, has publicly acknowledged that he has written Throat’s obituary.

When that posthumous profile reveals the secret name, it will be flash powder on the long-simmering debate about reporters’ use of anonymous sources — an issue much in the news lately because my former law school classmate, Thomas F. Hogan, now the chief judge of the U.S. District Court for the District of Columbia, has been holding journalists in contempt of court for refusing to reveal their sources to a grand jury investigating the leak of the identity of CIA operative Valerie Plame.

I’m caught in the middle on this discussion. As a columnist, occasional freelancer and author of six nonfiction books, I use unidentified sources myself. In fact, I just used one. The source who informed me that Woodward leaked the news of Throat’s illness to the executive editor of the Post gave me that information either on “deep background” or “off the record” (I never could get the distinction of those rules straightened out). So I apologize to my source if this information was never meant to be public, but it is a tidbit too hot to keep sitting on.

I don’t like using unidentified sources and never was one. During my years at the White House, not to mention those at the Justice Department and on Capitol Hill, I never leaked information, although I was frequently approached. If I couldn’t say it on the record, I didn’t say it. And because I had no authority to speak on the record, I chose not to speak.

So what is to be made of those who clank jail keys to encourage reporters to reveal their sources?

Without confidential sources, much of what people need to know in a democracy would never be reported, so unless there is a higher reason, journalists must be able to protect such sources who are willing to impart such information. That said, no news person should agree to provide confidentiality unless it is essential to obtain information that the public should be told and there is no other way to obtain the information. A scoop per se does not justify a pledge of confidentiality.

A source may be using the reporter, while the reporter is using the source. Motives range from the noble whistle-blower who is morally offended by misconduct to the staffer who is floating a trial balloon to the low-end leaker who is seeking to gain advantage by sabotaging a competitor or foe.

Reporters and their sources (and the public) must remember that when journalists agree to keep a source confidential, they have entered into a contract. Indeed, reporters have been successfully sued for damages when they have breached their agreement. However, in most states, every contract has an implied warranty of good faith and fair dealing — meaning that neither a reporter nor a source can take unfair advantage of the other. This is important because insiders leak for an array of reasons, not always honorable, and may be using the reporter’s confidentiality to protect themselves if, say, they are releasing information obtained improperly. If the source tried to enforce confidentiality, or collect damages from the reporter, the attempt would fail because of implied warranty.

Finally, if the confidential information relates to criminal activity, the U.S. Supreme Court said in 1972 (in Branzburg vs. Hayes) that should a grand jury investigating the crime need the information, the journalist must turn it over — despite the freedom of the press guaranteed under the 1st Amendment.

No reporter can enter into an agreement that violates that law. Rather, an agreement of confidentiality is subject to it. The so-called news person’s privilege, just like the attorney-client privilege or a president’s executive privilege, is a qualified privilege. When a judge holds a reporter in contempt for violating the law, that judge is merely upholding the law of the land.

As for Deep Throat, well, we will all soon learn if Woodward has been protecting a criminal for three decades, or merely a source who gave him some good information and some bad information — when history’s greatest source was wrong — that Woodward has never corrected. (To pick just one of Throat’s many errors, I randomly opened “All the President’s Men,” scanned until I came to the passage in which Woodward reports Throat as giving him this: “Dean talked with Sen. [Howard] Baker after [the] Watergate committee [was] formed and Baker is in the bag completely, reporting back directly to the White House.” It never happened.)

I suspect that Throat’s identity may prove a cautionary tale for all news gatherers. Stay tuned.