‘Deep Throat’ and Protected Sources

Nicholaus Mills defends confidentiality for journalists

As I watched on the evening news a frail, but clearly pleased, W. Mark Felt, the former number two official of the FBI, enjoying public recognition for the role he played as “Deep Throat” in bringing the Nixon administration to justice, I was glad that he decided not to take his secret to the grave. The least our country owed him were a few moments in the national spotlight.

But the recognition of Felt’s achievement did not just speak to the past. It was also a stark reminder of how today’s reporters need the legal right not to disclose the names of their confidential sources. Thirty-two years later, those who went to prison for the role they played in the Watergate conspiracy are still angry with Felt. Interviewed on the day Felt’s identity as Deep Throat was disclosed, Charles Colson, the special counsel to Richard Nixon, who served seven months in prison for participating in the Watergate cover-up, told the press Felt should not have been “sneaking around dark alleys and talking to reporters.”

We can only imagine how ruthlessly Colson and the Nixon White House staff would have treated Felt if he had gone public in 1973. Yet today, the right of reporters to protect their confidential sources, as Bob Woodward and Carl Bernstein did when they covered Watergate for the Washington Post, is at risk.

For refusing to reveal to the government their knowledge of the sources who in 2003 leaked to the media that Valerie Plame, the wife of Bush war critic former ambassador Joseph Wilson IV, was a CIA operative, reporters Judith Miller of the New York Times and Matthew Cooper of Time face jail sentences. It is not clear that they will win their cases, which are now on appeal.

The practice of not revealing sources goes back to 1871, when H. J. Ramsdell of the New York Herald Tribune told the Senate he would not reveal how he had obtained material that was supposed to be secret. There are currently laws or court decisions in forty-nine out of fifty states saying that journalists in all, or most, cases may refuse to reveal their confidential sources. But in federal courts, as First Amendment lawyer Floyd Abrams concedes, the right to confidentiality is murkier. There, the precedent is the 1972 Supreme Court case of Branzburg v. Hayes in which, in a five-to-four opinion, the justices ruled that reporters appearing before a federal grand jury do not have the same protection for their sources that they do in state courts.

Abrams, who is representing Miller and Cooper, believes that there may be wiggle room in Branzburg v. Hayes because of the balancing test that Justice Lewis Powell, who cast the fifth vote, insisted was necessary in the separate, concurring opinion he wrote. But Abrams is not sure of what will happen to his clients. According to the Reporters Committee for Freedom of the Press, between 1984 and 2000, eighteen U.S. journalists were imprisoned, the longes...