The politics of journalist subpoenas

Is the current subpoena-happy climate for journalism a cyclical phenomenon? Is it a result of the political climate? Is it rooted in ideology? Is it driven by the events of the War in Iraq or the War on Terror? Is it a combination of all of the above?

This seed was first planted last summer in an interview with Washington Post Pulitzer Prize-winning national security reporter Dana Priest. When describing how journalism is under attack (and how until recently the public was willing to go along), she said:

"I think it’s event driven and is led by 9-11 and how we think of ourselves in light of 9-11. Our job might be hard, but it’s so critically important right now. The stakes are huge of what we’re doing and how we’re moving forward and away from 9-11. I don’t know who else is going to help people through that—in terms of figuring out what’s still right and wrong and what we really want to do about really hard questions. Some of the answers get us nowhere near where we want to be. Unfortunately, most of those issues are wrapped in secrecy right now."

Her own prize-winning reporting about the CIA black prisons was attacked by the Bush Administration, although no one ever claimed that what she reported was wrong. And yet in the back of her mind rests the notion that she may be subpoenaed to testify about her story, which was exclusively sourced by confidential sources. I asked her if she was worried about being subpoenaed.

"I get asked that a lot. There are so many things to worry about, why worry about things you can’t control? I do think about it though. I guess a shield law would help, but there’s not really a legislative remedy for this. All government wants to control information. During the war in Kosovo, someone decided not to reveal how many cruise missiles were launched the first night. When it was learned there were civilian casualties, Pentagon officials were finally forced to talk about “accidents.”

The difference in this government is that there is a freeze on real dialogue between professionals – me and them inside – it’s like they don’t understand dialogue in public is fundamental to building consensus even if it means getting jabbed when you go in the wrong direction. There’s a difference between trying to control information and retaliating when you can’t."

"When you start talking war, you start talking about a different political climate (for covering government) that infects proceedings like that involving Scooter Libby,"says Donald Zachary, attorney practicing media law with the LA-firm Fox Spillane Schaefer.

He may be charged with perjury and obstruction, but at its core, Scooter Libby's trial is about controlling information and the ensuing retaliation and cover-up that occurred when a maverick decided he and the information he possessed would not be "controlled" by the administration.