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.”
Fear of alienating Klausner by calling attention to the Wright case appears to have kept Crogan and his attorney, Susan Seager, an ordinarily outspoken media lawyer who also represents the Weekly, from commenting or cooperating with the reporting of this story. (The Weekly is paying Crogan’s legal bills.) Media expert Kirtley is troubled by such reticence. “These do not strike me as matters we should be quiet about,” she says.
In addition to being subpoenaed by his own source, Crogan’s dilemma is rare in that the information Wright is seeking does not concern a confidential source: A named FBI spokesman has already testified in Wright’s privacy lawsuit that he spoke with Crogan. And Crogan never wrote a story about the FBI’s attempt to fire Wright. Crogan first wrote about Wright for the Weekly in August 2002. Wright had accused the FBI of shutting down a 1998 criminal probe into alleged Hamas terrorist training camps in Chicago and Kansas City, allegedly funded by a naturalized American citizen born in Jerusalem named Mohammed Salah. After 9/11, Wright also had sought FBI permission to publish a manuscript that was critical of the bureau, and was denied. He held a press conference in 2002 and filed a complaint with the Inspector General’s Office, which referred the matter to Congress. The FBI threatened to fire Wright, who has engaged in numerous other public battles with his colleagues and the bureau, including a free-speech lawsuit in federal court in Washington.
In July 2003, less than a month after Wright held another press conference and criticized the FBI, Crogan spoke with FBI Special Agent Royden Rice. In court papers, Wright alleges that Rice disclosed to Crogan information protected under the Privacy Act; namely, that Wright was involved in 10 internal affairs investigations; several agents had negative things to say about him; he was under investigation by the FBI; he has a side business selling children’s furniture; and that the U.S. Attorney, not the FBI, closed cases against terrorist suspect Salah because Wright failed to produce evidence to support charges. (The U.S. Attorney charged Salah in 2004 with financing terrorist activities on behalf of Hamas.) After he spoke with Rice, Crogan talked to Wright and his lawyer at the time, David Schippers, who wrote of the conversation in a letter to the FBI’s Chicago field office. Wright then sued the FBI for violating his rights under the federal Privacy Act, which bars the release of confidential information about government employees. In a deposition, Rice has denied much of what Crogan allegedly discussed with Wright and Schippers. Now that Schippers has testified, Wright wants Crogan to testify about his on-the-record conversation with Rice, to bolster Wright’s claim that Rice has testified falsely.
Wright has talked with other reporters over the years. A former colleague of Wright, retired FBI Special Agent John Vincent, now works as an investigator for Judicial Watch. He suggests that those reporters might also have talked with the FBI about Wright. Yet Crogan appears to be the only reporter subpoenaed to testify in Wright’s lawsuit. Which is strange, given a December 4, 2003, letter written by FBI Special Agent John Roberts to Senators Grassley and Leahy. The letter, provided to the Weekly by the Senate Judiciary Committee, contains a scathing account of the FBI’s alleged hostility toward whistleblowers. Roberts, an agent in the bureau’s Office of Professional Responsibility, alleges a coordinated effort by bureau officials to “take out” Wright following his 2003 press conference, essentially by going around the Inspector General’s Office. “I was left with the clear understanding that I was to . . . deceive, misrepresent and hide from the [Inspector General], the facts of this matter,” Roberts wrote. “I thought if this is happening in this case, in how many other cases are we doing the same.”
Then there is a telephone message taken by Roberts’ wife, a former FBI secretary, after speaking with one of Wright’s superiors. The message is excerpted in Roberts’ December 2003 letter to the senators: “RE: A list of agents in Chicago who feel Robert Wright is ‘crazy.’ These agents want permission to speak with a reporter from Chicago (Porter?) in order to discredit Wright.” Since receiving Roberts’ letter, Leahy and Grassley have written at least three letters to former Attorney General John Ashcroft, his successor, Attorney General Alberto Gonzalez, and FBI Director Mueller seeking answers about Wright’s pending termination. Grassley, who appears fed up with the Justice Department’s handling of the matter, met with Mueller in private last week, according to Judiciary Committee sources. Mueller is expected to testify before the Judiciary Committee on July 27 about numerous oversight matters, including the proposed firing of Wright.
In Los Angeles, U.S. Magistrate Judge Jennifer Lum ruled on June 10 that
Wright has failed to prove the information sought from Crogan is clearly relevant
to the privacy lawsuit. Klausner will hear the matter on August 8. In court papers,
through his attorney Susan Seager, Crogan claims: The First Amendment provides
a qualified privilege against disclosing unpublished information obtained by reporters
in non–grand jury cases; Wright has publicized through press conferences the information
Rice allegedly disclosed to Crogan; Wright has not exhausted other sources; and
Crogan’s testimony is not crucial to the lawsuit. Finally, Crogan, in court papers,
argues his participation in the lawsuit will harm his relationship with sources.
In response, attorneys at Judicial Watch, in court papers, argue: Crogan surrendered First Amendment protections reserved for confidential sources when he disclosed details of his conversation with Rice, to Wright and attorney Schippers; and Crogan’s testimony is essential to proving that Rice has violated the Privacy Act and testified falsely about it. They expect the FBI, which has remained neutral on the Crogan subpoena, to argue that Wright is not a whistleblower but is guilty of insubordination. “The government unfortunately chooses to use reporters to spread disinformation, then reporters turn around and claim a privilege against testifying,” says Paul Orfenedes, attorney for Judicial Watch. “They are being used to harm whistleblowers, and I’d think reporters would be more careful.”
One journalist who recently displayed an abundance of caution is the editor of The Cleveland Plain Dealer, Doug Clifton. The Plain Dealer is Ohio’s largest daily newspaper, and was recently named the best in the state. The Ohio Society of Professional Journalists lauded Clifton for his defense of the First Amendment on July 1. A day earlier, on June 30, Clifton disclosed in his column for The Plain Dealer that he was holding two stories “of profound importance” because they are based on documents “leaked to us by people who would face deep trouble for having leaked them.” The choice facing him and his reporters, Clifton wrote, would inevitably be: talk or go to jail. “Because talking isn’t an option and jail is too high a price to pay, these two stories will go untold for now,” Clifton wrote. “How many more are out there?”
Compared to more customary and, some would say, frequent attempts by the government to compel reporters to disclose what they know, the decision by Wright and his lawyers to haul Crogan into court is “perverse,” says Grant Penrod, an attorney for the RCFP. “If it was the FBI compelling the reporter to testify, surely the agent would want the reporter to resist,” Penrod says.
Media law expert Jane Kirtley is not surprised that it’s open season on reporters,
but says a deeper problem exists, particularly if First Amendment protectors allow
themselves to be silenced. “Keeping quiet plays into the hands of those who want
the media to acquiesce to pressure, while the global issue of government accountability
increasingly gets forced into back rooms.”