Geoffrey Stone, a University of Chicago law professor, friend to the president, and member of his intelligence policy review committee, writes in The Daily Beast today that Congress should enshrine some sort of special protection into law for the reporter-source relationship. It is an essential element of democracy, he says. And we tend to protect essential instruments, particularly those (like the lawyer-client relationship and marriage) which reflect and strengthen fundamental values.
The press professionalized in the early 19th century, fighting against consolidated corporate power and consciously assuming the role of watchdogging the expanding government. It never truly de-partisanized, but by the middle of the century, journalism was a thing unto itself, an occupation that did not necessarily imply any particular affiliation with a political party. Journalists had biases, to be sure. But those biases were functional and precisely the reason why journalism because such a change agent. The "fifth column" was predisposed to speak up for those who couldn't otherwise participate in democracy. It brought a wordily conscience to civil rights. It held powerful interests accountable to the basic creed of American democracy, a creed holding that basic rights cannot be infringed arbitrarily or for the personal gain of someone else, a creed that maximized rights to speech, assembly, and political participation.
When it comes to war and rumors of war, press leaks have become powerful and direct catalysts in favor of political change. Presidents hate them.
Confidential source-reporter relationships were primarily responsible for --
(a) the Church Committee's reforms to the intelligence community — think of Seymour Hersh's reporting on the Family Jewels and the National Security Agency.
(b) The hastening of the end of the disastrous Vietnam War — Daniel Ellsberg and The New York Times, as well as Jack Anderson's columns about Nixon's expansion of bombing campaigns.
(c) exposing Watergate.
(d) exposing the Iran Contra Affair (newspapers began to report on the arms-for-hostages trading in 1986).
(e) the CIA's GREYSTONE rendition, interrogation, and detention program after 9/11.
(f) the NSA's post-9/11 domestic surveillance.
And for much, much more.
Stone does not gloss over the difficulties inherent in giving legal status to any new privilege. Who, precisely, is a journalist? What are the formal and informal rules that judges will use to decide whether the subject of the interaction between source and journalist is indeed within the public's interest? Won't people try to game the system for their own parochial ends?
He notes, though, that the debates about every privilege and protection we already enjoy, including our basic freedom to speak, are dynamic and enduring. That's no reason to avoid recognizing them in the first place.