Right story, wrong reaction

Introduction

The story Aaron Mehta and I broke earlier this week about the FBI’s treatment of a former ABC News journalist as a potential informant has created quite a stir. And it should. Unfortunately, many of our colleagues in the profession have focused on a more trivial issue the story raised: the identity of the journalist.

Quite frankly, it doesn’t matter whether the unnamed journalist mentioned in classified FBI records was CBS News Washington bureau chief Chris Isham – as some have speculated – or Bob Woodward, Peter Jennings or Jack Anderson or even lesser knowns like John Solomon and Aaron Mehta.

There is a far more serious issue raised by the classified memo, one that goes to the heart of a free press in a democracy. And most of our colleagues appear to have missed it.

The FBI in its paperwork overtly treated a journalist — most likely doing his job — as someone who might be flipped as an informant.

The bureau actually opened an informant file on the journalist and assigned him a number in its informant database. He was even given a status by agents at the “suitability inquiry” level — a label given to someone who has given reliable information in the past to the bureau and who agents believe might be groomed into a fulltime informer. The memo stated the reporter had provided agents with “highly accurate and reliable information in the past.”

The effort to treat the reporter this way commanded unusual attention inside the bureau. A special agent in charge of the New York national security office was consulted and at least three separate agents over the course of the year were involved in contacts with the journalist, the memo showed. The FBI said it likely placed the journalist in the category of potential informant as a way for processing the information he had volunteered, and because agents probably expected it might need to follow-up with him.

Now the FBI says it has strict rules governing when agents can treat people in sensitive professions –journalists, clergy, doctors or congressional staffers – like confidential sources or potential informants. There’s a complicated approval process , and the individual needs to be informed and consent, which the bureau says make such designations rare. In this case, they say the journalist was treated as a confidential source for a limited period of time – about a year.

One with a keen sense of journalism’s hard-fought battles for independence and the founding fathers’ belief in a free press might still see a conflict.

Instead much of the media this week have focused solely on the inside-journalism gossip angle. Who was the reporter? Did he follow his network’s rules? Did he violate any confidences of sources?

We asked these questions and tried to answer them as best as we could in the original story while focusing on the bigger issue. Despite exhaustive efforts, we couldn’t ascertain for sure who the reporter was so we didn’t name the person because any names given to us were pure speculation. We spent nearly a week trying to interview Isham, because some of his former colleagues suggested he fit the description of the reporter in the memo.

We left calls for Isham on his personal and office phones, sent him an email with questions and even gave him a copy of the FBI memo.

Isham responded in a brief email that he was too busy to talk about the matter. We then went to CBS News’ spokeswoman, who said the whole issue should be left for ABC to answer.

We pressed ABC, too. The network says the memo’s description of events doesn’t seem to have followed its rules for when journalists can volunteer information to the FBI. But ABC said it can’t be certain because the memo was 15 years old.

We also interviewed the paid ABC consultant who first provided the network with the tip that the journalist subsequently volunteered to the FBI. The consultant – former CIA official Vincent Cannistraro – told us he never gave ABC permission to volunteer to the FBI the identity of his confidential source, a Saudi intelligence general. Cannistraro said he was surprised at what happened. But he ultimately volunteered the information to the FBI as well, so he wasn’t alarmed, just disappointed.

Almost all the coverage since we broke the story has focused incessantly on these inside-the-profession questions or even on silly speculation that the Center’s story was somehow an attack on Isham.

The Center has worked with CBS and specifically with Isham’s Washington team on a handful of investigative projects, most recently ones involving letters written by lawmakers to lobby for stimulus money and a federal gun-running investigation gone awry. We respect him and his network.

We also gave Isham days to respond. We wished he would have returned our calls and emails, just like I’m sure he hopes people involved in his stories would return calls. But we respected his right to say nothing. And we didn’t identify him because we weren’t certain he was the journalist. Only the FBI and the journalist know for sure, and neither would say.

If I were in Isham’s place, I’d want the story to come out. And for this reason: the FBI’s notion that a journalist could somehow be an informant or confidential source for the government should be anathema.

While most of the media glossed over this issue, a constitutional lawyer in Washington oft quoted by reporters captured the magnitude of the bigger issue raised by our story.

“This should be a matter for investigation within both the legislative and executive branches,” George Washington University professor Jonathan Turley wrote on his personal Web site. “It is a direct threat to a free press and is a common practice in authoritarian countries.”

Short of a reporter signing documents and outright volunteering to be an informant – an act I can’t imagine from any seasoned professional – the government has no business even contemplating turning a reporter into an informant or beginning a “suitability inquiry.”

It’s an infringement on the whole notion of a free press. It places journalists around the world in jeopardy if there is any inkling or acceptance of the notion that journalists can be viewed as arms of the government.

I know something about the ability of the government to chill reporting. In 2001, while I was an Associated Press reporter, the Justice Department approved a grand jury subpoena and obtained my home phone records in an effort to unmask some of my sources on a political corruption story. It was the first of several high-profile efforts by the Bush Justice Department to identify reporters’ confidential sources over the next decade.

A year later, the Customs Service intercepted a package with confidential source documents sent to me from another reporter, and gave it to the FBI, which kept my mail without a warrant or ever alerting the AP. Eventually, the FBI apologized an returned the package.

The question we reporters should be asking right now about the latest FBI memo is how many other times have journalists been treated as a “special source?” How many other reporters have been assigned informant numbers by the FBI? What are the specific rules that allow an agent to start treating a reporter like a potential informant? Have members of Congress and congressional staffers, clergy and doctors – all who have confidential relationships — been treated this way too? How many and how often?

We’re asking these questions at the Center and filing Freedom of Information Act requests to demand answers. We’ll update you on what we find.