Cover Story

Washington Lawyer

May 2006

Crime or Privilege? Leaking Classified Information

By Joan Indiana Rigdon

On July 21, 2004, in an event that began outside the Nordstrom’s in the Pentagon City Mall, and ended hours later across the Potomac with urgent meetings and phone calls, two lobbyists either did or did not commit the crime of receiving “national defense information” from a Pentagon analyst who was participating in an FBI sting, and then passing on that information. According to federal prosecutors, the lobbyists did commit the crime, and it was the seventh time they had done so.

The lobbyists, Steven Rosen and Keith Weissman, are American citizens who were working for the American Israel Public Affairs Committee (AIPAC), a pro-Israel group. They have since been sacked. Though its offices were the subject of an all-day FBI raid, neither AIPAC nor its current personnel are being prosecuted.

The idea that people may be spying in Washington is not remarkable. What is remarkable is that the alleged spies are being prosecuted not for stealing or paying for classified information, but for knowingly receiving it in conversation and then passing it on—something that lobbyists, journalists, lawyers, government officials, diplomats, policy wonks, and many others do every day in the course of their jobs.

If it were a crime to pass on legally obtained classified information, diplomats would not be able to negotiate the details of foreign policy before that policy was made public. Nor could the media have reported stories like Watergate, the Pentagon Papers, the Carter administration’s plans for a neutron bomb, prisoner abuse at Abu Ghraib, the existence of secret CIA prisons, or the National Security Agency’s controversial, warrantless wiretapping of American citizens who are suspected of being terrorists. Indeed, depending on the outcome of the AIPAC case, the reporting of these last two stories may yet be found illegal.

“There is no question the government is right,” says Richard Sauber, a partner specializing in First Amendment issues at Fried, Frank, Harris, Shriver & Jacobson LLP. “When there is no authorization for the release of classified information, if you knowingly receive classified information and knowingly pass it on, there is no question that is a crime.

“But there are a couple of questions. How does Washington really work? And is this . . . what a prosecutor should be doing, or are they just criminalizing practices that are not only done all the time, but done in the interests of the U.S.? Doesn’t the government in its own interest release classified information all the time? I think the answer to that question is yes.”

In fact, the answer is yes. Last month President Bush confirmed that he had personally authorized the leak of certain classified intelligence before the war against Iraq because the intelligence (which turned out to be flawed) bolstered his public statements in favor of starting the war. “You’re not supposed to talk about classified information, and so I declassified the document,” President Bush told students at Johns Hopkins University, according to a report by the Associated Press.

Government can’t work if the president is the only one who has the power to discuss confidential information, says Sauber. Senior officials need that power, too. “Say the secretary of state is meeting with a counterpart and he can’t on his own dime release classified information. That suggests a lack of understanding about how diplomacy works and how foreign affairs works,” says Sauber.

Overall, AIPAC points to “a collision between a technical application of criminal laws and the way Washington works,” he adds.

If there was any doubt that the AIPAC prosecution could be applied to journalists as well as lobbyists, that doubt was dispelled in a government brief in the case. The brief, filed in February, cited the Supreme Court’s Pentagon Papers decision’s finding that the press could be prosecuted under the Espionage Act “if they communicate or withhold the materials covered by that section.” But the brief also tries to soften the threat, saying that using the Espionage Act to prosecute a member of the press “would not be undertaken lightly; indeed, the fact that there has never been such a prosecution speaks for itself.”

Media advocates think it’s just a matter of time. “If this can happen to those people at [AIPAC], it can happen to journalists,” says Paul McMasters, a former journalist who is now ombudsman at the First Amendment Center. The AIPAC case presents “a danger of opening another front that would restrict the ability of the American press to bring information to the American people.”

The Perfect Storm

Public discussion of state secrets has come under attack many times in the past, especially during times of war. But now, as the government tries to wage an increasingly unpopular war against terrorists abroad and suspected terrorists at home, and as the president’s approval ratings have dropped, more people inside the government have stepped forward to leak controversial information about the war. (In January 2004 Daniel Ellsberg, who leaked the Pentagon Papers, urged government insiders to disclose confidential information about the Iraq war. But it’s not clear if it was his exhortation or other factors that led to the increased leaking.)

The Bush administration has responded with several investigations of leaks, including those related to the previously secret CIA prisons and the warrantless domestic wiretapping by the National Security Agency (NSA). The Department of Justice recently warned federal employees not to discuss anything related to NSA’s domestic wiretapping program, including information that is not classified. Meanwhile, in Congress Senator Pat Roberts (R-Kan.) is proposing more severe penalties for leakers.

As these government-driven investigations move forward, three other independent leak investigations grind on, with their own potential ramifications for changing the rules about who can say what to whom.

First, there is the case of Valerie Plame Wilson, the once-covert CIA agent whose identity was leaked to the press shortly after her husband, diplomat Joseph Wilson IV, publicly questioned the accuracy of the allegations the Bush administration used as its basis for starting the war in Iraq. Special independent prosecutor Patrick Fitzgerald has been hunting for the leakers since he was named to the position in December 2003.

Over the last two years Fitzgerald has compelled at least seven journalists to testify. One, former New York Times reporter Judith Miller, spent 85 days in jail before her source, I. Lewis “Scooter” Libby, former chief of staff for Vice President Dick Cheney, personally assured her he would allow her to testify. Another journalist, Matt Cooper, refused to testify, but agreed after his employer, Time Inc., turned over his notes without his permission. The notes identified his source, White House Deputy Chief of Staff Karl Rove.

Historically, several reporters have been compelled to testify before grand juries. Their number has been relatively limited, however, because of an assumed common law privilege, based on an oddly written concurring opinion in the Supreme Court’s one and only case in the area, Branzburg v. Hayes, decided in 1972.

“For a long time reporters were getting the benefit of presumption that there was some kind of privilege. The Libby case made clear there was no privilege. It will undoubtedly empower prosecutors and plaintiffs and defense lawyers in a given case to subpoena reporters,” says Robert Bennett, a senior partner at Skadden, Arps, Slate, Meagher & Flom LLP who is representing Miller.

Until the Plame investigation, subpoenas of reporters were unusual. Now they are being enforced by the dozen. “Pat Fitzgerald has demonstrated what no one thought possible, that you could get judges to compel reporters to talk and find the source of a leak,” says Sauber, who is representing Cooper.

“[Fitzgerald] has made it clear that reporters will cave, and their organizations will cave even if they don’t, if you make it hard enough for them,” says Stuart Taylor, a columnist for the National Journal, contributing editor to Newsweek, and fellow at the Brookings Institution. “It will be interesting to see how hard the DOJ pushes to take advantage of the Patrick Fitzgerald precedents.”

Some lawyers believe that Fitzgerald’s subpoenas helped open up the field to private litigants who want to subpoena journalists, too. Lawyers for Wen Ho Lee, a nuclear scientist who was fired from his government post during an espionage investigation, have subpoenaed half a dozen journalists for information on who leaked Lee’s name to the press. Lawyers for Steven Hatfill, a “person of interest” in the unsolved anthrax mail crimes, are doing the same thing, for the same reasons. They have subpoenaed members of at least nine news organizations.

Look next for Libby, who has been charged with obstruction of justice in the Plame investigation. His lawyers say they plan to subpoena journalists for information on their conversations with him.

With so many leak investigations in the courts or on the way, “this may be the year of the perfect storm on the use or misuses of classified information,” says Sauber. “Either it’s all going to blow up or it highlights the difficulties with the way current laws are written and the way Washington really works.”

Sauber sees several possible outcomes of the current batch of cases: the passage of a federal shield law, some “tinkering” with the classified data system, and laws criminalizing use of those data. But he’s unsure how the debate will proceed, given the current atmosphere of McCarthyite fearmongering that focuses on terrorists rather than communists.

“These are important issues,” he says. “I hope that we’re able to address them in the absence of hysteria [about terrorism].”

Branzburg v. Hayes

Today 31 states and the District of Columbia have a reporter’s privilege that shields journalists from being compelled to divulge their confidential sources and information. However, there is no federal shield law, although there have been several failed attempts to pass one. For protection from federal court proceedings, most journalists look, ironically, to Branzburg, in which the Supreme Court ruled against the journalist plaintiffs.

Branzburg was an amalgam of four cases in which reporters received grand jury subpoenas. In two of the cases, a reporter had witnessed his unnamed sources synthesizing hashish and smoking hashish and marijuana; the other two involved reporters who had interviewed the Black Panthers, the militant black rights group that former FBI chief J. Edgar Hoover once branded “the greatest threat to the internal security of the country.”

In its 5–4 decision the Court ruled that the First Amendment does not shield reporters from having to disclose confidential information to grand juries. But in a concurring opinion, written more like a dissent, Justice Lewis Powell outlined several instances in which a reporter could claim a privilege: when the grand jury is acting in bad faith; when the information sought is of “remote” importance to the investigation; and when the reporter “has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement.”

Powell also advised that courts should decide on the privilege case by case, by balancing the freedom of the press against a citizen’s obligation to participate in grand jury proceedings. His opinion later served as the basis for several state shield laws.

In the midst of Branzburg came Watergate and the Pentagon Papers, and along with those stories a new respect for the power of journalism to change the course of government. Soon after these scandals, the Department of Justice issued internal guidelines sharply limiting its ability to subpoena reporters as part of its investigations. “The prosecutorial power of the government should not be used in such a way that it impairs a reporter’s ability to cover as broadly as possible controversial public issues,” the guidelines read.

With public sentiment in their favor, journalists and their lawyers interpreted Branzburg as providing a privilege, as outlined by Powell, instead of focusing on the specific privilege it denied. Courts went along with the notion, and the fact that they did means there is a privilege, says Lee Levine, founding partner of Levine Sullivan Koch & Schulz, L.L.P. and a specialist in First Amendment law. “In the 30-some-odd years following Branzburg, overwhelming numbers of courts in almost all cases have interpreted Branzburg to at least allow them to find a privilege,” says Levine.

That is why, up until three years ago, “a reporter could say, ‘I absolutely promise you confidentiality, and I can guarantee that I will keep that promise.’ And both the reporter and the source could feel reasonably confident that that promise is not going to be overridden by a court,” says Levine. “There’s much less certainty today.”

Fitzgerald broke new ground with the Plame investigation on the basis, in part, of an opinion by Richard Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit who is also a prolific writer and active blogger.

In the summer of 2003 Posner’s court was asked to consider McKevitt v. Pallasch, a case involving three Chicago journalists who were writing a biography of an FBI informant who had infiltrated an Irish terrorist group. The journalists had taped their interviews with the informant. Lawyers for Michael McKevitt, who was accused in an Irish court of leading the terrorist group, demanded the tapes. The informant didn’t object, but the journalists did, saying releasing them could hurt sales of their planned book. A lower court had ordered the journalists to turn over the tapes.

The appeals court affirmed, 3–0. In the decision Posner savaged lower courts’ interpretation of Branzburg, suggesting that they misunderstood it or even “ignored” it. Some courts “audaciously declare that Branzburg actually created a reporter’s privilege,” Posner wrote.

The Posner opinion was an open invitation to prosecutors, says McMasters. “I think that encouraged federal prosecutors and federal attorneys to go after journalists.”

Drogin v. Lee

Now there is a possibility that Branzburg will be clarified.

In February lawyers for three journalists asked the Supreme Court to block a court order that requires the journalists to name their confidential sources in their reporting on Wen Ho Lee, the former government nuclear weapons scientist. If the Supreme Court grants certiorari to Drogin v. Lee, it could end decades of debate over what Branzburg really meant.

“The law is so muddled and so confusing. It really is crying out for the Supreme Court to step out and tell us what the law is. Thirty-some-odd years is a long time to wait,” says Levine, who is co-counsel for two of the plaintiffs, Bob Drogin of the Los Angeles Times and H. Josef Hebert of the Associated Press. (Floyd Abrams, renowned First Amendment lawyer who helped represent the New York Times in the Pentagon Papers case, is counsel for the third plaintiff, James Risen of the New York Times.)

Lee had been indicted on 59 counts of mishandling classified information. He lost his job and served nine months in solitary confinement before ultimately pleading guilty to one count of improperly copying classified information onto a computer. He was never accused of trying to sell the information or give it to a foreign government. When Lee was freed, U.S. District Judge James Parker apologized to him for the government’s treatment of the case, saying it “embarrassed our entire nation.”

Hoping to learn who leaked Lee’s name to the press, his lawyers sued for disclosure of journalists’ sources under the Privacy Act.

The Privacy Act was first used to go after the sources of government leaks during the Monica Lewinsky scandal. Lewinsky’s friend, Linda Tripp, had taped her conversations with Lewinsky regarding Lewinsky’s secret sexual affair with President Clinton.

After Tripp’s tip broke the story, New Yorker journalist Jane Mayer published information about Tripp’s failure to report on a security clearance form that she had been arrested at the age of 19. A conservative group, Judicial Watch, which aims to fight government corruption, subpoenaed Mayer to reveal her sources, saying the sources had violated the Privacy Act. A U.S. District Court judge ruled that the First Amendment shielded Mayer from the subpoena.

“I don’t think the Privacy Act was ever meant to be read as broadly as it has been,” says Kurt Wimmer, a partner at Covington & Burling who specializes in media law. “It presents really difficult First Amendment questions for the Privacy Act to be used to punish government interactions with the press.”

In their cert petition for Drogin v. Lee, the plaintiffs argue that if Lee prevails, “any modern-day Watergate suspect or even convicted felon could file a Privacy Act suit and, unless the sources themselves came forward, compel the disclosure of their identities.”

Levine and Abrams filed for cert after the U.S. Court of Appeals for the District of Columbia Circuit denied their request to rehear a panel decision that allowed Lee to compel the journalists to disclose their sources. That denial was based on a two-pronged test: whether the information sought went to the heart of the case and whether it had been sought from other sources.

Judge David Tatel dissented, complaining that the court’s test should have included a balancing test that the D.C. Circuit had applied in Zerrilli v. Smith, a 1981 case that recognized a qualified reporter’s privilege. The test should balance “the public’s interest in protecting the reporter’s sources and the private interest in compelling disclosure,” Tatel wrote. Without this balance “the panel’s arid two-factor test allows the exigencies of even the most trivial litigation to trump core First Amendment values.”

Although First Amendment advocates are hoping the Supreme Court uses Drogin to recognize a privilege that includes such a test, the reality is, it’s quite possible the Supreme Court will strike the assumed privilege altogether. “I wouldn’t be hugely optimistic that we’re going to like the way they resolve it,” says Taylor. “It’s not hard to imagine they might say, No privilege, period. End of conversation. No privilege in grand jury cases, no privilege in civil cases.”

In Drogin v. Lee, if “clients are behind the eight ball, it may be worth it to take a shot,” says Taylor. “But that doesn’t mean it’s prudent. If I were in a circuit where the law is pretty good, I wouldn’t be in a rush to have it resolved. If it’s pretty good, it can only get worse. It can’t get any better.”

McMasters agrees that petitioning for cert for Drogin “is a real roll of the dice. . . . It might resolve conflicts by saying, ‘Hey, Branzburg is the law of the land.’ And in those circuits where they’ve given latitude to the press, those decisions might not hold any longer.”

There’s another strike against Drogin. “The poor guy got pummeled,” says Sauber. “Some judges will have sympathy for him.” What’s more, Lee eventually “pleaded guilty to a serious crime. I don’t think that’s a good case to go to the Supreme Court.”

Wimmer disagrees. If the Supreme Court grants cert, it “could craft a common law privilege, as the courts of appeal have done, or it could adopt a constitutional privilege. If it takes the case but does not adopt a privilege, the door remains open for Congress to do so.”

Federal Shield Law

Wimmer is one in a long line of individuals to advocate for a federal shield law. He consulted with Representative Mike Pense and Senator Richard Lugar, both Republicans from Indiana, on the drafting of the legislation. The proposed law would allow journalists to withhold the names of confidential sources, unless doing so poses an imminent threat to national security.

The privilege would cover publishers, broadcasters, and wire services and their employees. It would also cover freelance journalists, if they have contracts. Freelance journalists who write only for the Web, including millions of bloggers, would not be covered.

“The congressional worry is that if you define [journalist] too broadly, you’re giving the privilege away to too many people,” says Wimmer. “We do have some legitimate law enforcement concerns.”

Although several previous attempts to pass a federal shield law have failed, the Pense-Lugar bill, Wimmer believes, has better odds because more journalists are united behind the effort. “I don’t usually say this, but the 100th time is the charm. It’s an uphill battle, there’s no question. But the interesting thing is, if you look back at prior efforts to pass shield laws, almost universally they failed because the journalist community failed. [They] weren’t unified as an industry behind the need to have a shield law.”

In past years many journalists argued that “giving Congress the power to shield them is the same thing as giving Congress the power to take away their First Amendment rights,” says McMasters, who admits having this view until a few years ago. “That argument has melted away in the face of the fact that the Justice Department and the courts have already done that. That battle has already been lost. So we’ve got to fight it in the legislative area. The Supreme Court in Branzburg invited the courts to do that very thing.”

Also, in past years opponents of shield laws argued they weren’t necessary because the First Amendment provided a shield. “There was a point in the 1980s where you could make that argument,” says Wimmer. “But the way the First Amendment is being interpreted by courts now, it’s clear that it’s just not enough at this point. . . . It doesn’t keep you out of jail.”

Wimmer is also hopeful that the bill will get an extra boost from Pense’s sponsorship, since Pense, like many past opponents of a shield law, doesn’t support special privileges for the press. “He’s not a big friend of the press. He’s doing it for whistleblowers.”

The Wrong Case

Ironically, one of the high-profile proponents of a federal shield law, Judith Miller, presents what some consider a weak case.

On its face, Miller’s advocacy makes sense. After all, she spent nearly three months in jail for refusing to divulge the name of her source. (Although Libby had signed a form waiver freeing her to testify, Miller didn’t consider the waiver voluntary because several government officials had been required to sign it. Nor did she consider it proper to hound Libby for a personal waiver. She agreed to testify only after Libby wrote her a personal letter and called her on the phone to assure her that he wanted her to testify.)

The point of shield laws, however, is to protect the act of news gathering by protecting journalists’ confidential sources. The idea here is that the confidential sources are whistleblowers.

“In a normal case, a lower level whistleblower is going after wrongdoing at several peg rates above his or her level,” says E. J. Dionne, a columnist for the Washington Post. “We’re not accustomed to a case where people near the top of the chain were using leaks to go after somebody lower down on the chain. That’s why the Plame case created such a complicated set of facts, and complicated our defense of the shield.”

Because the Plame case arguably involved the commission of a crime—outing Plame’s covert identity—Sauber doesn’t think it was the right case to take to the Supreme Court. He says the NSA whistleblower case would have been better. “That’s a classic case of the press getting information to the public.”

Exceptions to the Shield

Geoffrey Stone, a constitutional law professor at the University of Chicago and author of Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism, has spoken in favor of a federal shield law that would protect a source’s identity unless the source had committed a crime. That would make the reporter’s privilege similar to the attorney–client and doctor–patient privileges, which don’t apply if the information being sought is intended to conceal an ongoing crime or fraud.

However, the reporter’s privilege is not absolute, says Wimmer. “In the case of a journalist’s privilege, we’re really talking about a highly qualified privilege. If the proponent can demonstrate that the material that’s being sought is highly relevant and other nonmedia sources have been exhausted, the proponent often can have access to materials held by a journalist. This is a fairly weak privilege in comparison to the attorney– client privilege to begin with. Weakening it further by imposing a crime-fraud exception is really unnecessary.

“If Congress were willing to give journalists an absolute privilege rather than a highly qualified one, I could see [considering a crime-fraud exception].”

As for a crime-fraud exception for the name of a journalist’s confidential source, says Wimmer, “I’ve been at this for about 20 years now, and I’ve never seen a case in which the identity of the source is the key for stopping an ongoing crime or fraud.”

In their dreams, First Amendment advocates want an absolute privilege with no exceptions.

“If it were up to me, and we weren’t talking about legislative process, the benefits to a free people and a democracy of allowing journalists to promise confidentiality to sources far outweigh whatever incremental harm to other interests one might postulate. Therefore, the privilege ought to be absolute, at least in the confidential source context,” says Levine. “But I recognize that’s not politically feasible.”

Levine adds, “I think we would be much better off with a federal shield law with a national security exception that’s in the current version of the bill than we would be with no shield law.”

Form Waivers

Ultimately, it may not matter if there is a federal shield law. The Bush administration has been using a powerful tool that effectively undercuts any shield: the blanket waiver.

As Fitzpatrick conducted his inquiry into the Plame leak, President Bush ordered his senior officials and aides to waive any promises of confidentiality related to the leak. The move was intended to show that no one in the administration had anything to hide. If they did, signing the waiver would force their secrets into the open.

So the blanket waivers were signed, and sent to the reporters. But in the cases that we know about, including Miller’s and Cooper’s, the reporters did not accept the waiver because they believed their sources had been coerced into signing. In the end, Miller testified after receiving personal assurance from Libby after 85 days in jail.

Cooper testified after Time turned over documents that helped identify his source, Bush aide Karl Rove, and after Rove’s lawyer was quoted in the Wall Street Journal saying that “if Matt Cooper is going to jail to protect a source, it’s not Karl he’s protecting.” Cooper interpreted that as a personal waiver to testify. According to news reports, Rove’s lawyer believed he was simply underlining the fact that Rove had signed a blanket waiver.

In several cases where the waivers have been used, a pattern emerges. The sources sign them, loudly proclaim they have signed them to show they have nothing to hide, and at the same time withhold a personal waiver even as the reporter prepares to go to jail.

In one case, involving Providence, Rhode Island, WJAR-TV reporter Jim Taricani, the source signed a blanket waiver but continued to insist on anonymity in personal communiqués. Later the FBI identified the source as defense attorney Joseph Bevilacqua Jr. (Taricani says he unwittingly tipped off the FBI by telling them he had seen the source’s waiver, which was the only one shown to him.) In court Taricani and Bevilacqua accused each other of demanding that the other one keep silent while publicly claiming the opposite.

Taricani testified that if he knew he had permission to release Bevilacqua’s name, “I would have been the first one to scream that name from the top of the tallest building in Providence.” He was sentenced to six months of home confinement, but released after serving four.

Taylor says the waivers introduced a kind of a game, with sources signing them, hoping no one would take them seriously, and reporters prompting, “Gee, did you mean it?” Blanket waivers in leak investigations “are a new form of coercion under the guise of seeking a voluntary waiver,” he says.

“The form waiver is really an invidious tool,” says McMasters, especially when considered as a prerequisite for employment. McMasters doesn’t know of any instances of the waivers being used that way. But clearly, even without such a prerequisite, coercion is a factor: several sources in leak investigations are signing them, because refusing to sign would be tantamount to admitting to be the source.

Reporters currently deem blanket waivers as “absolutely worthless,” says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. If the waivers are ever used as a condition of ongoing or obtaining employment, “that would only underline the fact that there is no such thing [as a voluntary blanket waiver],” she adds.

Good Leaks, Bad Leaks

As the administration moves forward with its efforts to prosecute the sources and recipients of leaks, it will face the moral and legal challenges of how to legally differentiate between “good” and “bad” leaks.

“Look at the run-up to the war in Iraq,” says Dionne. The administration was leaking all kinds of information to help its case. At what point, if officials are leaking information to help their case, do they have the right to say that some leaks are beneficial and others are illicit? Who is to determine when a leak is in the national interest and when it is not?

“It’s quite possible that leaks that the administration would think are not in the national interest actually are, like the Pentagon Papers or the spying program,” says Taylor, referring to the NSA’s warrantless wiretapping. “This is something the public needs to know about and debate. Should the executive branch have the power to order this without anything being under the control [of a court]? That’s a public question.”

Dionne can’t fathom the government’s argument that revealing the program hurt national security. “It’s hard for me to believe . . . that this leak endangered our security. My assumption is that your average terrorist knows that the government is trying to monitor them in any way possible.”

Then, of course, there are leaks that are apparently made with the intent to smear, like the outing of Plame’s undercover status. “The government looks awfully hypocritical because they’re leaking stuff that’s at least as important as the stuff they’re complaining about,” says Taylor.

In the end, leak investigations are predicated on the idea that journalists, especially, do not know when to withhold information for the sake of preserving national security. Dionne disputes this, citing as example a tragic story he covered.

When Dionne was a reporter in Lebanon in the 1980s, an American named William Buckley was kidnapped. The press corps had a look at Buckley’s résumé.

“It was very clear to us that he was a CIA agent. Not a single one of us speculated on that,” says Dionne.

“I had a quote in my story from somebody saying he wasn’t doing sensitive work. I figured it might not be true. I didn’t know it was a lie. I decided to quote the person saying that, without putting in my groundless speculation, which turned out to be right.”

Buckley was in fact CIA station chief at the U.S. embassy in Beirut.

Unfortunately, through papers captured at the Iranian embassy, the kidnappers knew Buckley was a CIA agent. After 15 months of being tortured in captivity, he was executed.

Dionne could not have stopped that, but he certainly could have hastened it by reporting his suspicions early on.

“I don’t regret for an instance not saying something that would get the guy killed,” he says. “There is a sense of responsibility among reporters in war situations. There are a lot of things we don’t report that we might know.”

Joan Indiana Rigdon, a frequent contributor to Washington Lawyer, wrote about Google and fair use in the March issue.

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