Protecting the Accuser

By Thomas Griffith

The unexpected harshness of the Supreme Court decision in the case of the CIA spy who told suggests a court much preoccupied with leaks. Some critics trace this concern to the Justices' embarrassment over their own private doings as set forth in the bestselling book The Brethren and to the anticipated candor of the late Justice Douglas' forthcoming memoirs (see LAW). But the problem of leaks, and the damage they may inflict, is a real one. It has much to do with the kind of society we have become.

There are some people more worried about whether the FBI tried to entrap Congressmen than whether Congressmen were susceptible to bribery. Certainly a lot of reputations have been blackened before charges have been presented to a grand jury. Look at NBC's television cameras set up in a Winnebago van near Senator Harrison Williams' door before the FBI even comes to call on him. Who leaked the word to NBC, the New York Times and Long Island's Newsday, and why? A special federal prosecutor has been named to find out, but evidently he is not going to ask those who know best--NBC, the Times and Newsday--and if asked, they're not likely to tell.

Former Attorney General Griffin Bell suspects it was "someone who got caught in the Watergate syndrome, a paranoiac who thought the Justice Department would just sit on the whole thing, someone who thinks no one can be trusted." The New York Times published a long set of questions and answers about Abscam, including one on why leakers leak, but didn't think it necessary to discuss why newspapers publish information that could presumably wait until formal charges are filed. Convinced that news of Abscam was getting out, the FBI hurriedly completed its last interviews on the very Saturday that NBC, the Times and Newsday, each having checked out the facts on its own, broke the news. Naturally, nobody in charge at these three shops talks vulgarly of the thrill of a scoop.

Should the special prosecutor want to talk to Abe Rosenthal, executive editor of the Times, about the leak, Rosenthal would want "six lawyers at my side." The Times officials hesitate to discuss the subject publicly for fear of prejudicing any later legal claim to the right to remain silent. But it is not hard to discover the Times's attitude. It frequently knows and doesn't publish the news that prominent figures are under investigation. What made Abscam different, the Times feels, was the sheer size and expense of the FBI operation, almost like a Bay of Pigs. That seemed a story that needed telling even if it might violate the civil liberties of some who, if innocent, would later have to clear themselves.

Such a possibility, which bothers many lawyers, was less worrisome to NBC and Newsday. According to Bill Small, president of NBC News, "There was soul searching, but it's a story you had to go with. You can't sit on it. We haven't found them guilty. I can assure you that if charges are dismissed, we'll report it." Adds Newsday's editor Anthony Insolia: "We had it, it was accurate, we were satisfied. Our stories were very careful to point out that these were allegations. Whether the conduct was criminal or unethical is up to somebody else to decide." And if any Congressman was wrongly accused? "We'll rectify it. We're not afraid to print new developments." But might that Congressman's reputation be permanently damaged? "That's part of life. It's happened before."

So perhaps the size, sweep and nature of the FBI operation made early publication inevitable. (Rosenthal even deplores the name Abscam, which is short for Arab scam: "I wouldn't like it if the FBI had a Jewscam.") But there's still something disquieting about the way the press protects those whose leaks jeopardize due process of law or disclose security information. The Times, in listing the motives of leakers, says that some fear that superiors may override their findings, some long for personal credit, others with a grudge may want to punish a politician "with publicity even if an indictment is not warranted." For the sake of a good story, the press sometimes commits its own honor to shielding questionable collaborators. At least, the press should do a better job of alerting readers to the advantage someone, or some group, gains by a particular leak. Harold Macmillan, the former Prime Minister of Britain, thinks journalists are too rigid about protecting a source: "They regard themselves as having the privilege of the Roman Catholic priest. I did point out to one of them once that a priest may have to keep the confessional but he doesn't publish it in headlines."

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