Thomas Kleine-Brockhoff at PostGlobal

Thomas Kleine-Brockhoff

Germany

Thomas Kleine-Brockhoff is a Senior Director at the German Marshall Fund of the United States, a transatlantic public policy and grant-making foundation. He overseas the fund's policy programs. He was previously the Washington bureau chief of the German newsweekly, Die Zeit. Close.

Thomas Kleine-Brockhoff

Germany

Thomas Kleine-Brockhoff is a Senior Director at the German Marshall Fund of the United States, a transatlantic public policy and grant-making foundation. more »

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Problems Protecting Sources in U.S. and Germany

Germany has a free press, right? Well, yes. So free indeed that some of my colleagues believe they ought to turn to countries like the U.S. to highlight the fate of journalists under pressure from their own authorities.

Why, of all places, the U.S.? Because it does not have a Federal Shield Law that protects journalists who in turn protect their sources. And it is true: at some point during the last year a dozen or more American journalists have been imprisoned for contempt of court. They have done what journalists do: keep quiet about their informants. This silence about their sources is the basis of tomorrow's news.

Germany has strict shield laws. Journalists don't go to jail when they refuse to give up sources in court. Does that mean the press in my country is free and in America it isn't? Well, not exactly. Here is what happens in Germany: the country has an Official Secrets Act. Public servants who pass on classified information are prosecuted. And so are those who assist in this deed. Some judges have understood this law to mean that journalists can be complicit in this crime. The hotly contested question is whether it is enough to be on the receiving end of classified information. This law has become popular with prosecutors. They aim right at the heart of investigative journalism.

Here is a case: Bruno Schirra, an investigative journalist, had published a profile of terrorist Abu Musab al Zarqawi. Al Qaeda's frontman in Iraq was still alive at the time of publication. The journalist had based his report in part upon the classified Zarqawi file of Germany's Federal Police Force. Thus, the journalist knew everything about Zarqawi that the German authorities knew. And it appears he also knew what the German sources in the region were. It is not hard to imagine he also obtained some knowledge about the level of cooperation with Mideastern countries and their secret services. One afternoon police showed up at Schirra's house. They had a search warrant and spent more than five hours in the journalist's home.

In their search for the source of the Zarqawi file they also took documents that were clearly unrelated. The police confiscated more than 100 boxes of material from an earlier story: Kohl-Gate, the scandal that involved the former chancellor's financial dealings. (Full disclosure: During the first period of that multi-year journalistic investigation I was Schirra's colleague and writing partner.) It so happened that the police got interested in the sources of this old story as well. Two separate prosecutions followed. Schirra was implicated in both of them.

Only recently has the journalist been cleared of the charges. But the message these investigations sent was loud and clear: Don't try to obtain state secrets.

The lesson I draw from this German, as well as some of the wellknown American episodes, is this: freedom of the press is a work in progress in both societies (and likely in all others as well). Surely, American prosecutors need to be able to do their work in the name of the law and journalists are not above the law. Surely, the German government needs to protect classified information. While the press has a duty to inform, the state has legitimate interests of its own. To strike a balance between the two is a delicate issue in all democracies. These days, the press seems more vulnerable than it should be. America has no Official Secrets Act and no Federal Shield Law. Germany has both. That's why the legal issues that journalists are contronted with may appear to be different. The consequences for the fourth estate are quite similar.

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