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CONTENTS
1. Privilege, yes, but it is to protect the public
2. Operation Coverup
3. Union split: sign of decline or revival?
4. Maintaining the delicate trust between press and public
5. John Roberts: Comfortable in 'the Box'
1. Privilege, yes, but it is to protect the public
Journalists refuse to identify confidential sources for reasons that benefit all of us
By Martin Soames
The London Times
Wednesday, July 27, 2005
The jailing of Judith Miller, a journalist on The New York Times, for defying a court order to identify a confidential source has caused confused debate about about confidentiality and contempt of court. Privilege is claimed by journalists in such cases, but not so much for their benefit and protection as for the public at large, which should be able to read stories of genuine public interest. It is also to protect confidential sources who would not supply stories unless promised anonymity.
English law makes this clear. Under Section 10 of the Contempt of Court Act (1981) a person who refuses to disclose the source of information in a publication for which they are responsible will not be found guilty of contempt unless the court is convinced that there is a public interest basis for ordering disclosure “in the interests of justice or national security or for the prevention of disorder or crime”. The section reflects Article 10 of the European Convention on Human Rights, which gives a right to freedom of expression qualified by clearly defined exceptions.
Section 10 was drafted to reflect European human rights jurisprudence and to bring into English law recognition that sources should be protected when there are strong reasons for an informant to bring information to public attention. Cases about protection of sources show there has been careful consideration in balancing conflicting public interests. When an application is made for the identity of a source to be revealed, it is mostly not because a media organisation has acted wrongly but because it holds information without which a claimant cannot identify an informer (usually an employee) who has breached its confidentiality. The courts’ role is to weigh the public interests in protecting a source or giving access to justice, or to apply one of the exemptions under the Act.
In Secretary of State for Defence v Guardian Newspapers (1984), The Guardian was ordered to reveal the identity of Sarah Tisdall, a government employee who photocopied a document showing when American cruise missiles were due to arrive in England. The newspaper’s defence failed on the ground of national security and the interests of justice. The document was handed over, Tisdall was identified, tried and jailed.
The first successful media defence took place the next year: in Goodwin v UK a journalist’s refusal to disclose his sources was upheld by the European Court of Human Rights, which recognised the vital public interest” in protecting journalists’ sources. Two recent cases have led to orders for disclosure. In Financial Times v Interbrew in 2002 the court worked carefully through the requirements of Section
10 of the Act and recognised the right to freedom of expression. But the catch in this case was that for the informant no issue of principle was involved: he had supplied false information to the media in an attempt to rig the financial markets. As the court put it: “There is no public interest in the dissemination of falsehood.”
In Ashworth v MGN (also in 2002) Mirror Group Newspapers was ordered to disclose information identifying a source who supplied it with details from the medical files of the Moors murderer Ian Brady. The court did recognise that any disclosure of journalists’ sources had a chilling effect on the freedom of the press, it said that this interest was overruled by a stronger one in protecting the confidentiality of medical records.
The public interest can also force disclosure in the criminal context,where there are extensive powers of entry, search and seizure under the Police and Criminal Evidence Act (1984) and the Official Secrets Acts. There are saving provisions for journalistic material held in confidence, but they can be overruled easily. The Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001 created new offences of “ withholding information on suspected terrorist offences” under which people may face prosecution if in the course of their work they fail to report the discovery of information that might help the police. The public interest here is obvious.
Should we be concerned if journalists go to prison? Yes: for them and for those living under oppressive regimes whose rulers will be encouraged to see dissent crushed elsewhere. But we should think, as well as react, and remember that the interests at stake are public rather than private, however striking the personal circumstances.
Martin Soames is a media litigation partner at DLA Piper.
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2. Operation Coverup
Los Angeles Times editorial
Wednesday, July 27, 2005
Scandals metastasize. That is the pattern since Watergate. What starts out looking like a small, isolated incident gradually reveals itself to be part of a larger abuse of power. Meanwhile, an unraveling coverup adds new elements. Is that happening now with the scandal over White House leaks of the identity of a CIA agent?
Some folks say that as we learn more, the scandal is getting smaller, not larger. Valerie Plame was a CIA functionary commuting openly to agency headquarters, not a spy working behind enemy lines. The law against revealing the identities of intelligence agents is complicated and probably wasn't broken in this case. And the story line gets muddier: Journalists may have revealed Plame's identity to White House honchos.
We don't buy it. However they came to learn about this juicy factoid, people in the Bush administration misused an intelligence secret to discredit a critic of its Iraq policy. And outing Plame, whether illegal or not, did harm to our national security. Plame may work in Langley, Va., but she worked with others who work in more dangerous locales. You only need to imagine how Republicans would have treated such a leak in the Clinton administration to dismiss their protestations that it's all no big deal.
It's a good bet that there has already been some lying under oath. One theory about the puzzling tenacity and ferocity of special prosecutor Patrick J. Fitzgerald — why he is sending journalists to jail for refusing to provide information he already has about an activity that probably wasn't even a crime by people other than the ones he is persecuting — is that he's switched his attention from the leak itself to perjury by White House officials who were asked about it earlier in the investigation.
Perjury is your classic coverup method, and still is used when other methods have failed. Advances in the science of spin since Watergate, however, have made a high-risk, Nixon-style coverup unnecessary in many situations.
President Bush says he won't publicly comment about the Plame case while the investigation continues. But the reason the investigation continues is partly his fault. He should have determined early on who leaked Plame's CIA identity to members of the press, and dealt with it.
Why didn't Bush two years ago just ask Karl Rove and a few others in the administration whether they had leaked Plame's identity to Bob Novak and the others? Why doesn't he ask Rove now? Is it because he knows the answer? Or because he doesn't want to have to fire Rove?
As a precaution against such a catastrophe, Bush now says he will fire anyone found to have broken the law by outing an undercover intelligence operative. Previously he had said he would fire anyone who outs an intelligence officer, period.
The coverup, in short, is going well.
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3. Union split: sign of decline or revival?
As groups bolt the AFL-CIO, some think it means doom but others see an energized labor movement.
By Amanda Paulson
The Christian Science Monitor
Wednesday, July 27, 2005
CHICAGO - Depending on whom you talk to, this week's split in labor - with two of the largest unions breaking off from the AFL-CIO and at least two more likely to follow - is either a deadly departure from solidarity at a time when workers most need it, or an exciting step that could bring new vigor and creativity to a declining movement.
President John Sweeney, addressing his delegates on the opening day of the AFL-CIO convention, was filled with anger not just that the Service Employees International Union (SEIU) and Teamsters are leaving - taking 3.2 million members and $20 million in dues with them - but that they're doing so "at a time when our corporate and conservative adversaries have created the most powerful antiworker political machine in the history of our country."
Some may differ with Mr. Sweeney on the reason for labor's decline, but the one thing everyone - including the departing unions - can agree on is that it's a critical time for a movement that is fast losing both clout and members.
Only around 8 percent of private-sector workers hold a union card these days, barely a third of 25 years ago. The overall number is about 12 percent. Despite one of the most coordinated political efforts in its history, the labor movement failed in almost all its important campaigns last year.
"It's very clear that in the last decade, they've lost a lot of weight," says Charles Heckscher, a labor studies professor at Rutgers University. "No one's really taking them seriously." Despite union leaders' talk about holding Democrats accountable and influencing the direction of the party, he says, "when you only have 8 percent of workers you don't have that kind of clout."
Labor's decline has been steady for several decades now, driven by everything from globalization and outsourcing to a more antiunion legal landscape. There's also a changing perception among workers of the value of holding a union card.
ADVOCATES cling to poll numbers showing that despite low membership, interest in unions is still high: Close to 40 percent of workers saying they'd join a union if given a chance. Outsourcing and job insecurity have only increased that interest. But workers are also pragmatic. "They know their employers are antiunion," says Rick Hurd, a labor expert at Cornell University. "They may have a positive view of unions, they might rather be unionized, but they're not willing to put their job on the line to get there."
Indeed, most of the recent successful organizing, by groups like the SEIU and UNITE-HERE, a coalition of hotel, restaurant, and garment workers, has bypassed the National Labor Relations Board and traditional elections completely. Instead, they put pressure on employers - like gambling casinos in Las Vegas - to agree in advance to recognize unions.
The lack of similar efforts, or even a willingness to focus on organizing, by other unions is one factor leading to the current rift. While the AFL-CIO has talked more about the importance of organizing lately, the largely decentralized group has little power to force compliance.
Those optimistic about the split point to the success of the renegade groups in adding new members: They hope this will be an opportunity for new energy and creativity, while retaining some political solidarity with the AFL-CIO. "The best advertising for Change to Win is SEIU's growth over the past 25 years: Its membership has tripled," notes Ruth Milkman, director of UCLA's Institute of Industrial Relations. "They've demonstrated you can do it. "
But others point out that union difficulties go far beyond the need for more organizing or a merger by industry. Many of the remaining AFL-CIO unions don't have the luxury of being in industries - like service, construction, and trucking - whose jobs are unlikely to be outsourced.
"It doesn't seem to me that there's a compelling new vision on either side," says Mr. Heckscher. Simply organizing more workers won't address what he sees as two enormous obstacles for labor: globalization and the changing workplace.
While some labor groups are making overtures to unions overseas, the concept of a truly international labor movement is a long way off. Unions have also been slow to reach out to what many consider the archetype of the new recruit: young "knowledge" workers who have individualized jobs. They're interested in things like portable benefits, career networks, and security between jobs, but care little for sacred union notions like seniority.
The labor movement "is still focused on representing people in traditional bureaucracies," says Heckscher.
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4. Maintaining the delicate trust between press and public
By John Hughes
The Christian Science Monitor
Wednesday, July 27, 2005
SALT LAKE CITY - These are troubling times for journalism. There is furor over anonymous sources. One of the most famous anonymous sources in recent times was Mark Felt, aka "Deep Throat." And last week we had President Bush's key aide, Karl Rove, gazing cherubically off the covers of Time and Newsweek.
Though journalists cherish such inside sources as Mr. Rove, some are baying for his head for his alleged role in outing CIA employee Valerie Plame. In this complicated and unraveling saga, New York Times reporter Judith Miller, who actually never wrote about Ms. Plame, is in jail for refusing to tell who told her about the person she never wrote about.
Distinguished news organizations like The New York Times and CBS News are recovering from disastrous journalistic scandals. Jayson Blair, at the Times, made stuff up. Dan Rather, at CBS, went with badly sourced and unsubstantiated accusations about Mr. Bush's military record on the eve of the presidential election.
Then we have an explosion of "blogs," creating literally millions of untrained journalists who "report," factually or not, on virtually anything that takes their fancy.
The abundantly clear lesson emerging from all this is the need for trust.
Trust between sources and reporters.
Trust between reporters and editors.
Trust between editors who package the product and the readers, listeners, and viewers who consume it.
The Christian Science Monitor has maintained a widely recognized reputation for integrity in almost a century of publication. When it has erred, or been misled, it has been quick to make amends, corrections, or apologies.
Recently questions have arisen about two journalists who years ago worked for the newspaper - Pham Xuan An in Saigon and Edmund Stevens in Moscow.
I met An, the subject of a recent profile in The New Yorker, several times when I visited Vietnam during my time as a Monitor correspondent in Asia. He had studied journalism at Orange Coast College in Costa Mesa, Calif., and was popular with the large American press corps in Saigon covering the Vietnam war.
His connection with the Monitor was as a part-time guide, interpreter, and gatherer of information for Beverly Deepe, an able freelance reporter for the Monitor. There is no indication that at any time he actually wrote for the newspaper.
When Elizabeth Pond, a highly regarded Monitor foreign correspondent, succeeded Deepe in Saigon, she inherited An on the same part-time basis.
Ms. Pond told me in an e-mail a few days ago: "He knew all the arcane convolutions of Saigon politics, so was very good at explaining to me as we debriefed after interviews what it all meant. I certainly had no inkling about An's real role at the time."
An's real role, as became evident after the fall of Saigon, was that of spy for the Vietnamese communists, who had recruited him years earlier. It is a given that had the Monitor had any inkling of his communist connection he would have been instantly dismissed.
An worked for various news organizations but his primary journalistic connection was with Time magazine as a correspondent over a period of years.
I never knew Ed Stevens, apparently soon to be the subject of a new book. He was a distinguished foreign correspondent before being assigned to Moscow in 1943. By 1955, when I joined the paper, he had gone to work for Look magazine.
As with other reporters who managed to survive in Moscow over an extended period, his tenure raised questions as to whether he had special ties to the communist regime. His work for the Monitor could not have suggested any favorable treatment. As his son, Edmund Stevens Jr., commented: "His reporting repeatedly got him into hot water with the Soviet authorities and got him kicked out in 1949." For a scathing, 44-part series, "This is Russia Un-Censored," he won the Pulitzer Prize in 1950. (He was not readmitted to the Soviet Union until 1956.)
A book, "The Secret World of American Communism," published by Yale University Press in 1995, asserted that Stevens had joined the American Communist Party in 1938.
Monitor editor David Cook wrote at that time: "If Stevens did join the party, whether as a youthful experiment, out of a deeper commitment to communism, or as a means of securing an exit visa for his family, the fact should not have been hidden."
Though the Monitor may have been disappointed, or its trust betrayed, in a couple of instances, its sturdy editorial opposition to communism, and its clear-headed reportage from countries that embraced that unhappy dogma, is of course beyond dispute.
John Hughes, editor of the Monitor from 1970 to 1979, was the Monitor's Southeast Asia correspondent during the 1960s, and won a Pulitzer Prize in 1967 for his coverage of Indonesia.
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5. John Roberts: Comfortable in 'the Box'
By Marcia Coyle
The National Law Journal
Wednesday, July 27, 2005
A week before President Bush nominated John Roberts to the U.S. Supreme Court, Senate leaders had urged him to look "outside the box" at candidates who would bring diversity in a variety of ways to the high court bench.
Is Roberts outside the box?
Well, yes and no, according to court scholars, political scientists and others.
In the words of Sen. Patrick Leahy and in the minds, no doubt, of the other senators meeting that day with Bush, the box is the "judicial monastery" -- sitting judges in general, federal appellate judges in particular.
Roberts, currently a judge on the U.S. Court of Appeals for the D.C. Circuit, fits comfortably within that box, having served there for just over two years.
On the court that Roberts hopes to join, eight of the nine justices had prior judicial experience -- seven came directly from federal appellate courts and one (Justice Sandra Day O'Connor) from a state appellate court. Only the chief justice, William H. Rehnquist, had no prior judicial experience.
Federal appellate courts have provided the largest pool of high court nominees now for more than half a century. Only once in the last 53 years has a president plucked a lawyer directly from private practice as his Supreme Court choice, and that was the courtly Virginian, Lewis F. Powell Jr., whose mantle as the high court's "center" or critical "swing vote" was taken up by O'Connor shortly after he retired.
"It's not surprising at all that [Bush] picked a federal appellate court judge," said Lee Epstein, professor of law and political science at Washington University School of Law in St. Louis. "There is now some sort of norm of prior judicial experience, and really prior federal judicial experience."
This norm now extends throughout the federal court system in a gradual and remarkable trend, which political scientist Sheldon Goldman of the University of Massachusetts at Amherst, a long-time scholar of the federal judicial appointments, calls the "professionalization" of the federal bench.
"This is a bureaucratic phenomenon in many senses," said Goldman. "It works to the benefit of a presidential administration because they know what they're getting. It works in terms of judicial organization because it provides incentives to have a judicial career."
But he and others believe the trend also has significant downsides for litigants and for the quality of justice.
DIVERSE DIVERSITY
There have been an enormous number of studies, Epstein said, showing that people with diverse career experiences bring different things to the table. And there is every reason to believe that would be true of the Supreme Court as well.
Epstein recalled Rehnquist in a speech talking about the importance of nominees with private law practice experience.
"He was thinking about people like Louis Brandeis and Powell," she said. "They brought a real-world perspective to the court. This Supreme Court, some critics say, is like running little law schools."
Powell's lack of prior judicial experience and wealth of private practice experience, she suggested, may well have contributed to his position as the key swing vote during his years on the high court.
"He probably hadn't formed many opinions on a lot of key issues because he wasn't an appellate judge and he hadn't been a government lawyer working in the solicitor general's office and taking the president's view of a lot of social issues," she explained.
On the surface, Roberts' nomination doesn't appear to be a particularly diverse one, said Epstein, but his private practice experience is distinct from many of the current justices. He spent 13 years practicing law at Washington's Hogan & Hartson, and nine years as a government lawyer in the Department of Justice and in the White House counsel's office. That puts him closer to Powell and Rehnquist, she said.
"The current Court has the least number of years in private practice: a mean of 8.2 years -- the lowest in Supreme Court history," said Epstein. "Prior to 1953, the mean was 16.4 years. And at one point, in the 1930s, it was close to 25 years."
Epstein traces this "norm of federal judicial experience" to President Dwight Eisenhower's disappointment with Earl Warren, who had no experience as a judge.
"He felt judicial experience would make someone a more faithful adherent to law," she said. "If you appoint a John Roberts, he's going to understand that you have to be constrained by laws and rules. There are studies indicating that theory is true, false or makes no difference."
In his confirmation hearings for the D.C. Circuit seat, Roberts told senators that the high court's landmark abortion ruling, Roe v. Wade, 410 U.S. 113 (1973), was settled law and that he would apply it, noted Epstein, a co-author of "The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court," published in California Law Review in 2003.
"But if he is on the Supreme Court, is he going to stick to that? Who knows?"
Epstein said she is someone who thinks that more diversity in all kinds of ways is generally a good thing because it leads to higher-quality decisions.
"Ultimately a Supreme Court full of nine white men all of whom had 10 years of experience as federal appellate court judges looks at the law differently than a group diverse in race, gender, experience and background. There is a need now for more diversity on the Supreme Court."
Court and administration watchers now speculate that if Bush gets another high court vacancy to fill, the next nominee will be the one "outside the box," at least in terms of race, gender or ethnic diversity.
But if the "professionalization" of the federal bench continues, true diversity of life experiences will be harder to find, noted Massachusetts' Goldman.
"The proportion of lower court judges that have previous judicial experience is something like over 50 percent for Bush appointees," he said. "This is just all the more remarkable."
On the district courts, 56.6 percent of Bush's first-term appointees had prior judicial experience, and on the courts of appeals, 61.8 percent. And also at the district court level, there has been an increase in the proportion of judges who were U.S. magistrates. The Bush administration's first-term appointments had a record 17 percent with magistrate experience.
"If you compare that to President Roosevelt's appointees, you find that only 20 percent of his district court appointees had previous judicial experience," added Goldman. "We jumped from 20 percent in the 1930s to 56.6 percent. That's a substantial transformation.
"We've been seeing this gradual trend toward professionalization of the bench in the lower courts and now, since Justice John Paul Stevens was appointed, we've seen it in this respect on the Supreme Court."
Stevens left the 7th Circuit for the high court in 1975. For a period of 10 years before that -- from 1962 to 1972 -- there was a break in appellate court dominance when five new justices joined the Court. All had made their mark in the executive branch of government, with the exception of Powell: Arthur Goldberg, Abe Fortas, Byron White and Rehnquist.
This professionalization trend is "probably not" good, said Goldman. "You are getting judicial bureaucrats, with left-wing bent or right-wing bent, but they are judicial bureaucrats and they're thinking within certain boxes and certain life experiences."
Goldman said he doesn't believe it was an accident that O'Connor turned out to be a more moderate and more cautious conservative than people expected because she did have some major political experience (she was an elected Arizona state senator), which can make "all the difference in the world."
With Roberts, he added, there is government and private-practice experience. "Of course being as relatively young as he is, it's a question mark how seasoned he is in terms of his experience."
GOOD OR BAD?
Diversity of experience would be positive for the Supreme Court "in a limited dose," said constitutional law scholar Douglas Kmiec of Pepperdine University School of Law.
"I'm of two minds when I hear these pleas for diversity," he said. "Some are making them in the mistaken desire to have the court be more political than less or more policy-oriented than less."
Bush, he added, did go outside the box, "albeit just a little."
Roberts' experience in private as well as government law practice "means he has been held accountable to people, unlike the folks substantially in the 'judicial monastery,' as Leahy calls it," explained Kmiec. "They are accountable to deadlines but not to someone wanting explanations for what they did -- something we all have in our jobs."
The upside of this professionalization trend, according to high court scholar A.E. Dick Howard of the University of Virginia School of Law, is that "The justices of the present court are very bright, talented, very good lawyers, on average, as good a bench as we've had in modern times, in the purely technical sense." But a significant downside, he added, is that "When they are sitting around the conference table or drafting opinions, they're not able to immerse some cases at hand in the larger social and political context. They can do it academically but they haven't actually been there in those contexts."
He noted that no one on the high court had held a significant national elective or appointive office. Pointing to a case two terms ago in which the five justices basically washed their hands of judging political gerrymandering challenges, he said, "Small wonder. They simply don't know how to get their hands around an issue like that."
Diversity is actually a component of impartiality, said Sherrilyn Ifill of the University of Maryland School of Law, pointing to its role in jury composition.
"To look at the end of a very exclusive pipeline to find judicial nominees for the most exclusive court in the country strikes me as 'clubby' to the say the least," she added. "Obviously, there are consequences for the issue of diversity as well."
Black and Asian-American judges, she explained, are extremely underrepresented on federal appellate courts. And, as President Jimmy Carter's black appointees retire, black judges will become increasingly absent from district courts.
"So the pipeline is not even being fed properly," she said.
In the end, according to nominations scholar Michael Gerhardt of the University of North Carolina School of Law, the most important factor for this president and this vacancy is that these judges' tendencies are thought to be more predictable.
"This president wants a strict constructionist -- evidence of a commitment to a particular judicial philosophy, and the best place, in their minds, to find it is in the federal judiciary."
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ACLU Legislative Counsel
Tallahassee, Florida
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