Keeping Secrets

In Confidence: When to Protect Secrecy and When to Require Disclosure
by Ronald Goldfarb, Yale University Press, 289 pages, $27.50

Several months after the abu Ghraib scandal broke in 2004, I interviewed an Iraqi woman who had been held at the prison and used her name in an article about the abuse that took place there. Afterward, the woman, who had seven children, was kidnapped, badly tortured, and killed. I will never know whether she was murdered because she had spoken to me or was just another casualty in a barbaric war. Nevertheless, I do know that her decision to meet with an American journalist set her apart from other people in her Baghdad neighborhood and increased the chances that she would become a target. During the interview, I asked for her permission to publish her name, and she agreed not only to be identified but also to be photographed. In retrospect, I made a terrible mistake. Journalists sometimes have a responsibility to protect subjects from themselves, and I wish I had not quoted or even interviewed her. Her death has haunted me over the years and made me acutely aware of the stakes in issues of confidentiality.

Ronald Goldfarb has tackled these difficult questions, among others, in his book In Confidence. The subject could not be more timely. The U.S. House recently passed a bill that would create a federal shield law for journalists to provide them greater freedom in protecting the confidentiality of their sources. Meanwhile, President Barack Obama took an important step toward transparency by releasing interrogation memos that shed light on what occurred at U.S.–run detention facilities. The Obama administration has not been particularly forthcoming, though, about its own inner workings. On issues such as the financial crisis, for example, officials have been less forthright and have withheld important details about bailouts to financial institutions.

These somewhat contradictory decisions of the administration embody an unavoidable tension: As Goldfarb writes, "The need to possess secrets and the desire to reveal them compete within us all." Transparency in government and the protection of journalists from legal demands to reveal sources are separate issues, but they are both part of the larger debate over secrecy examined in Goldfarb's book. He writes about the internal conflicts that individuals, whether in the White House or in a bar at an airport, feel about disclosing secrets as well as the conflicting opinions on confidentiality that the courts have handed down. Things have gotten even tougher for reporters in recent years, as the courts have forced many of them to disclose sources on the grounds that a fair trial requires a defendant to have access to witnesses whose testimony may be used against him.

In his book, Goldfarb draws on an impressive store of knowledge about the subject, and he certainly knows what it is like to operate in a shadowy world. While working under Attorney General Robert F. Kennedy in the Justice Department in the early 1960s, he helped fight organized crime and racketeering. In subsequent years, Goldfarb worked for a Washington law firm, pushed for penal reform, and tried a landmark Eighth Amendment case that exposed injustices in the District of Columbia prison system. His clients have often had things to hide ("secrecy is the fundamental rule of criminals and prisoners," he writes), and his job has been to protect them as best he can.

According to the law, there are certain kinds of people to whom you can tell secrets and remain reasonably sure that they will not betray you. You can trust lawyers and psychiatrists, at least in this narrow legal sense, because they cannot be forced to reveal confidential information except in rare cases. Other professionals such as journalists and accountants have tried, and failed, to secure the same kind of protection for their relationships with sources and clients. Goldfarb sees the work that he and other lawyers do as worthy of privilege and protection, and he portrays the "private and personal part of representing clients" through a romanticized, Masterpiece Theater-type lens: "There is a unique faith between strangers, a sense that the lawyer is providing important advice that should and will remain private."

Goldfarb is less sentimental, and perhaps rightfully so, when he describes the relationship between journalists and their sources -- a relationship understood by both parties to be confidential but not protected by law. He does not believe that the relationships between journalists and their sources should be granted the same kind of legal protection that is accorded to lawyers and their clients. Quoting journalist Anthony Lewis, Goldfarb writes that a reporter's privilege is "a matter of policy rather than a constitutional right." For that reason, Goldfarb argues that Congress, not the courts, should "articulate a balanced rule" and that legislation can provide "a more precise answer" to questions about reporters' rights and obligations.

Some journalists have argued that the First Amendment gives them an absolute right to refuse to divulge sources -- exhibiting a "grandiose notion" about the First Amendment's breadth, in Goldfarb's view -- but with the Supreme Court unlikely to adopt that interpretation, most journalists support shield laws, whether at the state or federal level, that would offer them some firm, if less than absolute, statutory protection. They claim that they must be able to promise confidentiality to their sources in order to investigate wrongdoing without fear that those sources will someday be exposed and face retribution, even death. Like lawyers, however, journalists can end up protecting liars, killers, and thieves through shield laws. At the heart of the struggle, therefore, is just how broadly or narrowly the privilege for journalists would be qualified. The legal battle over this issue has been long and bitter. Beneath the surface, there are two cultures: on the one hand, the prosecutor who wants to ascertain guilt, and on the other, the journalist who wants to find the truth. For however shabby, incompetent, or disreputable they might be, journalists (at least most of them) offer confidentiality to a source in the hope of writing a more truthful article, whereas prosecutors are focused on getting a conviction. Yet the tide has turned against journalists, explains Goldfarb, and federal prosecutors are now more likely to go after reporters' records in criminal investigations. As a result of that trend, plus demands for reporters' testimony in civil cases, journalists are, according to the Reporters Committee for Freedom of the Press, "drowning in a sea of subpoenas."

This is, of course, bad news for investigative journalists who rely on whistleblowers and other anonymous sources. But reporters themselves -- at least the crummy ones -- are really to blame. Far too often, the cloak of secrecy has been used for people who do not need it. As Goldfarb points out, high-profile cases (Exhibit A: The New York Times' Judy Miller) reveal that journalists have been protecting unsavory characters rather than heroic ones and are turning the notion of journalistic confidentiality on its head. "In the cult of the anonymous source, worshippers visualize the object of their adoration as a noble dissident, courageously revealing malfeasance by a powerful institution that will wreak a horrible revenge if the source is uncovered," writes Goldfarb, quoting journalist Michael Kinsley. "But most leaks ... are more like this one ... plotted by the powerful institution itself ... for the purpose of stomping on exactly the kind of dissident who plays the hero's role in the generic leak fantasy." As a result, the courts have been less sympathetic to journalists who try to hide the identity of their sources, making it harder for investigative reporters who are actually doing their job and whose sources should be protected.

Despite Goldfarb's considerable expertise and passion for the subject, the book is not exactly a page-turner. He has a penchant for stating the obvious, explaining, for example, that journalists are not licensed. (If reporters had licenses, they'd be showing them to everybody.) Much of his book seems hastily thrown together and offers little that is new. In Nation of Secrets, Ted Gup covers much of the ground and in a more cogent fashion; in Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Charlie Savage delves into many of the issues in Goldfarb's book -- in more detail, backed up by meticulous reporting. Nevertheless, Goldfarb manages to stake out his own territory: He provides a guide to the legal milestones in confidentiality and includes (relatively) new media in his survey of the subject.

E-mail, he explains, is known as "evidence mail" among trial lawyers, "so common is it now to search litigants' computer records," and allows for as much privacy as a postcard, at least according to Google executives. (They were responding to complaints about Gmail, which scans private e-mail for keywords and then uses these words to sell advertisements.) Among other things, the reader learns in Goldfarb's book that the courts' opinions on journalists and the protection of sources have been contradictory, and the inconsistency of the rulings has left matters in a state of semi-disarray. Overall, the legal trend has shifted toward the demand for evidence rather than protection of confidentiality, although neither prosecutors nor journalists can be confident about the outcome in a particular instance.

Knowing what to disclose and what to keep secret is not always intuitive, as I found out while writing about Abu Ghraib. When I published my article about the prison and the Iraqi woman, I thought I was doing the right thing by including a first-person account of the atrocities. As I discovered, though, questions of confidentiality and secrecy allow for no easy answers. In Confidenceis a flawed book, but it manages to bring these difficult issues into the open and to provide insight, even some comfort, to those who are wrestling with them.