Richard Lavinthal addresses a news conference before the U.S. Attorney makes an announcement.

Public Relations & Media Relations
by Richard Lavinthal

This critical opinion piece appeared in the Commentary Section of
The Sunday Times of Trenton on July 31, 2005.

Omerta and Journalism: Watergate Style

©Copyright 2005 by Richard Lavinthal. All rights reserved.

WASHINGTON — A reporter's vow to protect the identity of a secret source is the most important sacrament in journalism, the key that can unlock a story lurking below the surface. It's vital for investigative journalism, but it can extract a heavy toll on the reporter who offers it. Journalism's version of omerta can lead to jail, where Judith Miller of The New York Times now sits.

The news source owns the promise of confidentiality ‑ not the reporter who gave it. The source can release the reporter from his obligation of secrecy, as Karl Rove did when he released Matthew Cooper of Time magazine. The CIA leak investigation has focused attention on investigative journalism at a time when the media is pressing for a federal shield law for reporters.

But hiding in plain sight, apparently unnoticed by the media and its wonks, is a major question of journalism ethics. Did two of the most honored reporters in modern-day journalism break a 33-year vow of secrecy, opting for expediency instead of ethics after being scooped in a story they had owned for decades?

After being caught ``flat-footed'' (The Washington Post, June 1), did Bob Woodward and Carl Bernstein unilaterally abrogate their agreement never to reveal the identity of their secret source while he was alive?

If the sacrament of confidentiality was broken in one of the biggest stories of modern American history, are there ethical implications? If confidentiality can be breached without permission, what is confidentiality?

W. Mark Felt, the 91-year-old retired former FBI assistant director, was very much alive when Woodward, Bernstein and the Post confirmed Felt as their secret source on May 31, the day Vanity Fair magazine hit the newsstands with the article, ``I'm the Guy They Called Deep Throat.''

In the article, written by attorney John O'Connor, Felt admits he was the mysterious Watergate source.

In the film that fictionalized Woodward's and Bernstein's best-selling book, ``All The President's Men,'' Deep Throat tells Woodward to ``follow the money.'' A similar analysis could explain why a vow of lifelong confidentiality was broken after 33 years of silence.

Lifelong confidentiality is sacrosanct. It must be waived by the owner or a legal representative. In Vanity Fair, O'Connor states that Felt's Watergate memory fades more each day and Woodward told me that Felt has no memory of it. But an absence of memory is not a waiver of confidentiality.

Neither Woodward, Bernstein nor The Washington Post were ever released from their vow or, more importantly, asked Felt, Felt's family, or O'Connor to be released. And no waiver was ever offered by Felt or the family, according to O'Connor and Woodward.

Felt's family or attorney, after the Vanity Fair article appeared, would have released him from the agreement, Woodward said, but asking at that point ``would be absurd.''

I take a contrarian view, believing that the reporters and the Post were obligated to remain mum while they sought a waiver from Felt or his family. Then, by the next news cycle they would have been free to write and talk without breaching an omerta-for-life agreement that had no exceptions.

Woodward courted Felt and his family for several years, according to the Vanity Fair article, initially showing up, unannounced, at the family's Santa Rosa, Calif., home. Sometime after the 30th anniversary of the Watergate break-in, Felt agreed to his family's suggestion that he go public — but said he wanted to do it with Woodward, O'Connor wrote in Vanity Fair.

During many discussions with the Felts and O'Connor, Woodward sidestepped their requests to collaborate, O'Connor wrote. Woodward knew he would be writing his story and not collaborating at any time with the Felts, but never gave them a simple, cut-and-dry, ``No.''

During that time, he refused to confirm to Felt's daughter, Joan Felt, or to O'Connor, that the elderly ex-G-man was the elusive Watergate source.

``Joan and I spoke to Woodward by phone on a half-dozen occasions over a period of months about whether to make a joint revelation, possibly in the form of a book or an article. Woodward would sometimes begin these conversations with a caveat stating, more or less, `Just because I'm talking to you I'm not admitting that he is who you think he is,''' O'Connor wrote in Vanity Fair.

Woodward's just-released book, ``The Secret Man,'' took ``a mere 10 days in preparation following the revelations in Vanity Fair on May 31 about Mark Felt's role in the drama,'' Economist Editor Bill Emmott wrote in a July 12 book review for The Washington Post. As Woodward stayed in touch with Felt's family, carefully leaving the door open for a joint effort, how many of the book's 249 pages were being written?

At first, on May 31, Woodward and his editors respected their lifelong agreement with Felt. But then determined the promise was void, reasoning that their obligation ended since Felt, himself, had led the horse out of the barn.

``Caught flat-footed by Vanity Fair's announcement,'' David Van Drehle wrote in The Washington Post the next day, ``Woodward and Bernstein initially issued a terse statement reaffirming their promise to keep the secret until Deep Throat died.''

Later he wrote, ``In the beginning they stood by their 30-year promise to Felt: never to confirm his identity until after his death.'' Then Post Executive Editor Leonard Downie rushed back to Washington to consult with Woodward, Bernstein and Ben Bradlee, vice president at large and former executive editor.

reaching their promise, ``the newspaper decided (it) had been released from its obligation by Mark Felt's family and by his lawyer, through the publication of this piece,'' Downie said. ``They revealed him as the source. We confirmed it,'' Von Drehle wrote.

In a July 11 appearance on CNN's ``Larry King Live,'' Woodward discussed Judith Miller's jail sentence for refusing to testify before a grand jury. ``It's not a casual idea that we have confidential sources. It is absolutely vital,'' Woodward told King.

And in his review of ``The Secret Man,'' Emmott discusses Felt's memory of Watergate and quotes Woodward as saying it ``... has failed even further since. That raises the question of whether a promise not to disclose a source's identity until after his death is altered by that source's mental incapacity ‑ and Woodward, surely rightly, concludes that it is not.''

If the promise is not altered by mental incapacity how can the Vanity Fair article waive that promise? Note that neither Emmott or Woodward argued that incompetence breaks the bond.

Later, Emmott writes, ``For the individual journalist, disclosure is more or less fatal: Why should anyone give information to that person again? Woodward argues that his later books, which have depended on confidential conversations with countless officials, were made much easier to report by the very public knowledge that everyone knew he had kept his promise to Deep Throat and that is probably true.''

Is it?

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