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12/01/2004

More "Plame Waivers"

Just not in the Valerie Plame case. Isikoff and Hosenball report in Newsweek that the tactic, pioneered in the Plame investigation, of requiring government employees to waive reporter-confidentiality agreements is being considered for "as many as 100 FBI agents, federal prosecutors and other [Justice] department employees" potentially involved in the case of Dr. Steven J. Hatfill, who was publicly (wrongly) implicated in the 2001 anthrax attacks on Washington.

The waivers are meaningless, as they are rightfully not recognized as valid by reporters. They are also bizarre, as there should be many alternative methods of identifying government leakers. Nonetheless, they provide insight into how the administration thinks:

Just how much pressure the government has used can be gleaned from the experience of one former White House official who, after the leaving the government, was still pushed repeatedly by the FBI to sign the waiver form. The former official, who asked not to be identified, said he refused to do so because "I didn’t think it was fair to the reporters. It struck me as a backdoor way to use pressure." An arrangement between a reporter and a source "has to be all or nothing. It can’t be changed after the fact."

At that point, the FBI agents called up the former official’s lawyer and stepped up the pressure, saying that other witnesses at the White House had signed the statements. “If he’s got nothing to hide, why won’t he sign,” one of the agents asked, according to the former official’s lawyer.
Two important comments. First, the expansion of this tactic is not a good development. While it is currently being used in investigations of leaks that are either obviously or ambiguously contrary to the public interest, there can be no doubt that they will be used against genuine whistleblowers in the future. As I type, the administration is destroying the CIA in a fit of pique over leaks, and their secrecy fetish is well known. Tactics developed in gray areas quickly expand to white.

Second, Isikoff and Hosenball's piece was given the title "Whistle-Blower Crackdown Spreads." Whoever leaked information on Hatfill may have had the public interest at heart, but could just has easily been running interference for the administration's profound incompetence on the anthrax investigation. It's not clear that they deserve the "whistleblower" title; the leakers in Plame obviously do not. George Gavalla, Dr. David Graham, Michael Kelly, Teresa Chambers, Richard Foster - a small sample of real whistleblowers.

Update, 12/02/04, 2:06 PM EST: Eugene Volokh has an op-ed in today's NYT on the topic. He is concerned about the interaction of Plame waivers and non-traditional media (i.e., bloggers). His brainstormed remedy is something that I could support, though it could be done through judicial rule reform, rather than legislation:
Lawmakers could pass legislation that protects leakers who lawfully reveal information, like those who blow the whistle on governmental or corporate misconduct. But if a leaker tries to use a journalist as part of an illegal act - for example, by disclosing a tax return or the name of a C.I.A. agent so that it can be published - then the journalist may be ordered to testify.
The problem, as usual, is that some information rests on both sides of the line. The leak of the CIA appointee's 20 something year old arrest for shoplifting, for instance: it is a petulant violation of the guy's privacy, but if the CIA won't respect him, there is a serious public interest at stake.

 

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