Passing Lannis’s office on the way back, George heard Lannis and Buffalo going at it in a verbal shouting match.
“Yeah, well you can find your own way to and from the base from now on, you little weasel… starting with finding your own way home today. You’re out of the carpool, and that’s it.”
George stepped into the office. “What’s going on here?”
“Just be glad you didn’t see the rest of this guy’s performance this morning,” answered Buffalo. “You would have killed him.”
“I’m always glad when I don’t see Lannis,” responded George, trying to smooth things out with a little humor. “What’s so special about this time?”
“Nothing,” answered Lannis before Buffalo had a chance to respond. “Buffalo and I were just talking about the media when he went ballistic on me.”
“Hey, can’t you guys just talk about the weather or something?” George quipped. “What’s the matter with you?”
Buffalo jumped in. “Our esteemed little intel officer here seems to flip-flop on the issue of the media. First, when he’s with us in the car, the ladies and gentlemen of the media are the defenders of our civil rights — they can do no wrong. Then, when he’s briefing the admiral, they amazingly become a bunch of traitors revealing national security secrets and weakening our chances of detecting terrorist attacks. Then, back here in his office, he’s defending them again. I’m just sick of his crap.”
“So what are you saying now, Lannis?” asked George.
“I was just saying, reporters like James Risen and Eric Lichtblau have the right to keep their anonymous sources confidential,” responded Lannis.
“Risen and Lichtblau, the New York Times reporters who published the story in 2005 about the Bush administration’s wiretapping?” asked George.
“Yeah, they’re a couple of traitors,” said Buffalo. “If it wasn’t for them, we probably could have prevented the Washington DC attack. And now, Lannis is defending their right to withhold the names of the traitors in the administration who disclosed the details of that top-secret program to them.”
“Well this should be good,” responded George, settling into one of Lannis’s guest chairs. “Let’s hear your argument, Commander Wayne.”
Lannis looked as though he was tiring of this discussion, but responded anyway. “The Supreme Court Justice William O. Douglas once wrote that a reporter is no better than his source of information. Unless he has a privilege to withhold the identity of his sources, his sources will dry up, and his ability to enlighten the public will be ended. Without sources, the reporter’s main function would be reduced to passing on to the public the press releases that the various departments of government issue. Now you guys may disagree, but I don’t think that’s what we want or need here in America.”
Buffalo jumped in, “But what he’s not telling you, George, is that Douglas wrote that in a dissenting opinion in the case of Branzburg v. Hayes in 1972. The majority opinion of the Court that day, written by Justice Byron White, was just the opposite.” Buffalo turned to Lannis. “As the admin officer, I also have the collateral duty of serving as the staff’s legal officer. After you and I talked earlier, I looked up this case. The majority opinion is clear and unambiguous.” Buffalo pulled a folded piece of paper from his pocket and began to read it. “Here’s what it said: ‘The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of the press guaranteed by the First Amendment. We hold that it does not.’ Now I don’t know about you, but I don’t see how the court could have been any clearer,” concluded Buffalo.
“It sounds pretty clear to me, too,” said George. “So what’s the controversy?”
“Well, amazingly enough,” continued Buffalo, “lower federal courts have ignored the Supreme Court’s majority opinion. Overall, White’s opinion was a scathing dismissal of the journalists’ position that they had a legal privilege to withhold the names of their sources. But it seems Justice Lewis Powell wrote a concurring opinion in that case in which, although he agreed with the Court’s holding in that particular case, he said journalists might be able to refuse to testify under certain circumstances.”
“Ah, so let me guess,” ventured George, “The courts have taken Powell’s concurring opinion as the law and have attempted to define what those certain circumstances are. Am I right?”
“Yep, exactly right,” said Buffalo. “I just disagree. I don’t think there are any circumstances that justify a special privilege to protect reporters from testifying. Other privileges, like attorney-client or doctor-patient privileges, are tied to more formal confidential relationships. They exist in order to promote candor between a client and his attorney or a patient and his doctor. If you have a reporter-source privilege, the reporter may talk to a lot of people while reporting a story and then just decide, willy-nilly, who will be privileged and who won’t. I don’t think that’s right.”
“It’s not willy-nilly,” Lannis responded. “The law says that if a source requests or is given confidentiality before giving the reporter the information, the reporter has to keep it confidential. If the source gives the information first, the reporter has no requirement to keep the source a secret. So it’s not willy-nilly.”
Buffalo looked at George, hoping to get some support on the issue.
George shrugged. “Sorry, Buffalo, but he’s right… to an extent.”
“To what extent?” asked Buffalo.
“Well, it’s a correct statement of how reporters are supposed to handle their sources, but it’s not law. It’s just some arbitrary ethics rule that reporters have set up to govern themselves. It shouldn’t be confused with law.” Turning to Lannis, George concluded: “The law, if Buffalo is correct, is what Justice White said in the Supreme Court’s majority opinion when he said there is no reporter-source privilege.”
George and Buffalo exchanged a satisfying glance.
Lannis squirmed in his chair, obviously uncomfortable with the way this discussion was heading. “Look guys, even if the courts are skating on thin ice from the point of view of legal precedent, these days the courts have created a balancing test in which they weigh the public benefit of the leak against the harm the leak caused. If the harm outweighs the benefit, then the reporters have to testify and reveal their confidential sources. If the benefit outweighs the harm, the reporters are privileged and don’t have to testify. In the case of Risen and Lichtblau, the public benefit was that it was brought out into the open that the President of the United States was breaking the law. I think that’s pretty important.”
Lannis was agitated now. He got up and began pacing behind his desk to stop his nervous knee-jerking. “What you guys seem to forget is there were already procedures in place that enabled the president to legally request the wiretaps, and presidents before George W. followed those procedures. According to former President Jimmy Carter, warrants could be obtained very quickly — and there was no reason not to follow the procedures. A good number of Republicans came out against the warrant-less wiretaps, too, so it wasn’t just a matter of Democrats bashing a Republican president, which I know you were about to say. The fact is, if George W. had followed the procedures, there would have been no leak and no story to report in the first place.”
Now Buffalo was on his feet and agitated. “Look, we all know about the warrant procedure set up under the Espionage Act. But it’s a question of putting the cart before the horse. Those procedures require a federal judge to issue the warrant, and he’s not likely to do so without a showing of probable cause. That’s fine if you’re building a case against someone as a spy. But when you’re trying to weed out terrorists in your midst, you have to throw a broader net, and it’s only through your wiretaps that you get the information necessary to show probable cause.”