Woodward, Miller, and the shield laws
Carlton M. Caves
2005 November 19

It's 1973. I'm 22 now, though I won't be for long, and riveted by the emerging Watergate story.

Bob Woodward and Carl Bernstein of The Washington Post are ferreting out the truth about the Watergate burglary and the subsequent cover-up. Their main source, Deep Throat, meets with them in the middle of the night in an underground parking garage in Rosslyn to provide crucial information as their investigation proceeds. Deep Throat provides this information on the basis of complete confidentiality, and his identity will be jealously guarded for over 30 years---imagine that!---till May of 2005, when Mark Felt will reveal his role as Deep Throat, thus freeing Woodward, Bernstein, and the Post from their pledge of confidentiality.

What a compelling story of fearless reporters relentlessly exposing the truth about powerful and arrogant government officials. The investigation doesn't stop till it reaches right into the Oval Office, where the president is ultimately found to be responsible and is disgraced and forced from office. It is a heroic story, with elements of intrigue and high drama. It will inspire a generation of journalists and set the standard for investigative journalism.

Here's that standard. Reporter receives confidential information from a government source who is revealing secrets about government malfeasance or corruption and who requires confidentiality in order to avoid the retaliation of the officials he is exposing. The reporter, using the information supplied by his source, shines a bright light onto secret activities that high officials are desperately trying to hide from the public. Acting as the people's tribune, the reporter is a thorn in the side of the powerful. The reporter has access to crucial information because he did the hard work---and perhaps also had the good luck---to find a source who is willing, for whatever reason, to expose secrets that the public ought to know.

Wow! This is great. Give us more. Let's provide a shield law to protect this kind of reporting, by ensuring that a reporter can't be forced to reveal his confidential sources. Otherwise, what such sources will come forward?

Flash forward to 2005. I'm 55 now, the leaves have turned to brown, and time hurries on even faster than it did in 1973.

Reporter gets confidential information from high government sources who operate in secrecy, but who want the reporter to provide their version of events in due course. The reporter is a willing tool of the powerful. He has unique access to the high and mighty because he has implicitly agreed to retail their story without much, if any analysis of its veracity. Far from providing a window into the secret machinations of the government, the reporter is merely a conduit for his sources' self-serving version of history. The reporter gets big bucks for this service, by writing best-selling books that provide the illusion of a window into the inner workings of government, but actually do nothing to expose the secrets of the most secretive administration in recent history.

Wait a minute now. This doesn't sound so heroic. Do we need a shield law to protect the reporter from revealing these sources? Far from puncturing the arrogant and powerful, these sources are the arrogant and powerful, wanting to put their own spin on history.

Is this description unfair to Bob Woodward? Perhaps, but I don't think so.

Judith Miller, the recently retired reporter for The New York Times, who spent time in jail for refusing to reveal that her source in the Plame affair was Scooter Libby, Cheney's chief of staff, is an even more egregious example. In exchange for access to the powerful in the Bush administration, Miller mainlined the administration's manipulated pre-war intelligence about Saddam's weapons of mass destruction directly onto the front pages of The New York Times (so much for the idea of a liberal press). Remarkably, Miller maintains even now that her schmoozing with high officials in the Bush administration and their Iraqi friends was the stuff of aggressive investigative journalism. How could she have missed the real story, which lay in exposing the Bush administration's manipulation of intelligence? But getting this real story would have required hard work and would have interrupted---probably terminated---her ego-gratifying tete-a-tete's with the Bush elite.

If I were 22 again, I would be inclined to start thinking that nobody over 30 can be trusted. Being 55, I have two other takes, both pretty obvious, but less prejudicial to my interests.

The first is that reporters are no more virtuous than the rest of us. They are as subject as anyone to the allures of power, wealth, and influence, and those who succumb to these sirens have outlived their usefulness as reporters. The odds of succumbing increase with age, making for the healthy distrust that youth has for middle age and beyond.

The second is that everything you get from the press must be subjected to critical analysis. This is not hard to do with the conservative press, since it reports everything with a slant so obvious it can't be missed, but it is also true of the mainstream press, especially in the case of stories that are based on confidential sources. Whenever you read such a story, you have to ask yourself the following questions: What sort of source is providing this information, and why are they doing it? Whose interests are they promoting, and whose ox are they trying to gore? Keeping these questions in mind doesn't tell you whether the information is true, but just thinking about them provides an essential perspective.

I confess that recent events have prompted me to rethink my position on shield laws for journalists, the main effect being that I now don't have any recommendations at all. I do know there is a major difficulty in defining who is a journalist at a time when any blogger might legitimately claim to be one.

Addendum: 2005 December 12

On a flight home from Germany yesterday, I came up with a pithy way to phrase the distinction I'm looking for: Are you the face of power, or are you in the face of power?

There have always been journalists whose modus operandi was to gain the confidence of our leaders and to provide us a window into how they think and work. One could always argue that this style of journalism was too cozy with the powerful, but when combined with more confrontational styles, it often provided insight into the policies and actions of our government and thereby contributed to the public debate.

Today, however, things have changed radically. We have the most secretive, most manipulative administration in my lifetime (I'm including Nixon), one where the true reason for a policy or action is always veiled by a cloud of secrecy, deception, and distortion. Bush almost never speaks to an audience that has not been carefully vetted to ensure fawning acceptance of his message, and he almost never answers critical questions from the press, except when he is in another country and cannot escape the commitment that country's leaders have to meeting with the press. Under these circumstances, fronting for the Bush gang only aids and abets their secrecy and deception and contributes to the increasingly evident debasement of our national discussion.

The only acceptable behavior for a journalist today is to be in the face of the Bush gang, confronting them at every opportunity. This is always a good style of journalism, but in these times it is essential. Regrettably, it's hard to see how to codify into a shield law the distinction between "the face of power" and "in the face of power," so we'll have to rely on the judgment---and sometimes the courage---of our journalists (and bloggers) to get things right.

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