FBI’s Dirty Laundry

 An FBI agent's accusation that he is being sacked for criticizing the bureau’s counterterrorism investigations has drawn fire from U.S. Senator Charles Grassley. The Iowa Republican and member of the Senate Judiciary Committee is ready to question FBI Director Robert Mueller at a committee hearing on July 27 about the bureau’s reluctance to help him investigate the firing-in-progress of Special Agent Robert Wright, a self-described whistleblower.

The political battle that will be unfolding in Washington, D.C., will also, to some degree, focus attention on the role the media may have played in the FBI’s alleged attempts to discredit Wright. The embattled agent has filed a federal privacy lawsuit against the FBI and has subpoenaed Jim Crogan, an L.A. Weekly freelancer, to testify in civil court about conversations Crogan had with an FBI spokesman in 2003. Grassley also wants to know if the FBI provided false information about Wright to Crogan or any other reporter.

“If the allegation is true that the FBI leaked information to a reporter to discredit Mr. Wright, the bureau has a serious problem on its hands,” Grassley said last week in a prepared statement. “It’s even more disheartening knowing that at this same time I’ve been trying to exercise my constitutional responsibility of oversight to gather information from the FBI about its investigation of Mr. Wright. The FBI has consistently stonewalled our attempts to gain information in the firing of Mr. Wright. Unfortunately, this isn’t the first time we’ve seen whistleblowers treated like skunks at a picnic.”

Crogan appears to be the only reporter subpoenaed in the civil matter, despite a 2003 letter sent to Grassley and Vermont Senator Patrick Leahy, ranking Democrat on the Judiciary Committee, from an FBI agent who has accused bureau officials of looking to other reporters to discredit Wright, in a concerted effort to retaliate against him.

Crogan is fighting the subpoena to testify and won the first round in court on June 10, when a Los Angeles federal magistrate judge ruled he is not required to disclose conversations he had with the FBI about Wright. Wright’s lawyers at Judicial Watch, a conservative Washington, D.C., public-interest group best known for the string of lawsuits it filed against the Clinton administration, including one on behalf of Gennifer Flowers, appealed the decision. U.S. District Judge Gary Klausner will hear the appeal in Los Angeles on August 8. If Klausner enforces the subpoena and Crogan refuses to comply, the judge could find him in contempt of court. Penalties could range from a fine of $500 per day to jail.

Recent attempts to force journalists to testify in legal disputes are becoming viral, according to media experts. Some see a dangerous trend emerging from the jailing of The New York Times’ Judith Miller for refusing to identify a possible source of an alleged White House leak of the identity of CIA operative Valerie Plame. Time magazine reporter Matthew Cooper escaped a similar fate when Time released internal communications, and he testified before a federal criminal grand jury about his conversation with White House Deputy Chief of Staff Karl Rove. One issue that makes Crogan’s case different is that it is his own source who is dragging him into court.

Government officials and some groups, like Judicial Watch, feel journalists wrongly assume they are immune from testifying. First Amendment advocates fear both the government and some private lawyers are shifting their fact-finding burden to journalists — and that media controversies are deflecting attention from the government’s unwillingness to police itself. Three separate proposals to create a federal reporter’s shield law are before Congress.

“We’re facing a crisis,” says Jane Kirtley, a professor of media ethics and law at the University of Minnesota. “There is a misplaced reaction to the Plame investigation. Lawyers are not willing to do all they can to determine who is lying and who is telling the truth.” Replies Tom Fitton, president of Judicial Watch, “Reporters need to burst the assumption that they should be left alone with their sources. They can be witnesses to illicit activity and should be prepared to comply with the law if called to testify.”

More than 20 journalists since 1975 have been jailed for refusal to testify, reveal sources or turn over notes, according to the Reporters Committee for Freedom of the Press, or RCFP, in Arlington, Virginia. More than 20 others during that same time have been fined for civil contempt. Before Judith Miller, television reporter Jim Taricani, of Providence, Rhode Island, recently served four months under house arrest for criminal contempt, for his refusal to reveal a source in a criminal probe of former Mayor Buddy Cianci. Taricani’s station, WJAR, was found in civil contempt and fined $85,000. On June 28, a federal appeals court in Washington, D.C., found four journalists in civil contempt and ordered fines of $500 per day per reporter for refusal to identify confidential sources in a privacy lawsuit filed against the Justice Department by a nuclear scientist once suspected of espionage, Wen Ho Lee.

Because the Wright case is in civil court, if Crogan is ordered to talk and he refuses, he more likely faces a fine for civil contempt, such as in the Lee case, though experts say it depends on Judge Klausner. “Until recently, I would have said a civil penalty is more likely in a civil case,” says Lucy Dalglish, executive director of the RCFP. “Now we can’t be sure of anything.”