While some may view Obama's stance on administration leaks as aggressively hard-line, his approach of prosecuting officials responsible for disclosure of confidential information is relatively tame compared to the approach proposed at the Extraordinary Chambers in the Courts of Cambodia last week. The Cambodia Daily reports that, at a private meeting, international Co-Prosecutor Andrew Cayley warned that journalists who disclose confidential information from the ECCC risk criminal prosecution. That's right -- not court staff, but journalists could face prison time for publishing confidential information from the court. In addition, Cayley threatened contempt of court charges against journalists responsible for publishing confidential court documents. While there's no doubt that the problem of confidentiality is a serious one for the ECCC, with names of witnesses exposed on the Internet and prosecution allegations leaked to reporters, the prosecution of journalists seems both ineffective and contrary to the underlying purpose of the court -- to bring the rule of law and democracy to Cambodia.Cayley's threat appears to rest on quite broad language in the ECCC's rules authorizing the court to sanction "any person who discloses confidential information in violation of an
order of the Co-Investigating Judges or the Chambers." While punishing court officials and employees who reveal confidential information might in some cases be necessary to prevent leaks from the inside, the prosecution of journalists will neither stop these leaks nor serve the public interest.The dangers of authorizing such prosecutions are described well by Thierry Cruvellier, a French journalist who faced contempt proceedings at the hands of the Office of the Prosecutor at the International Criminal Tribunal for Rwanda after he revealed that a key prosecution witness was suspected of participating in the genocide. In his words,
In democratic societies, journalists breach confidentiality measures and defy court orders when they believe the public interest outweighs the need for secrecy. And it is the job of journalists to find out information that some parties in a trial want kept secret.Yet prosecutors at the ICTR and now the ECCC seem to overlook both the crucial role of the Fourth Estate in a democracy and the central function of internationalized criminal courts in modeling democratic principles in countries struggling to transition to democracy. One can only hope that they remember these core democratic values at the ECCC, and soon.
