Posted by Damozel | Sen. Arlen Specter (R-Pa) ---the ranking minority member of the Senate Judiciary Committee --- has responded to Michael Mukasey's argument in The Washington Post. An earlier article provides a nutshell summary of the pertinent parts. It seems a very moderate sort of shield to me, so I find the fact that Mukasey and other Administration officials oppose it distinctly worrying.
The bill would protect a reporter's source unless a federal judge, "by a preponderance of the evidence," ruled that the identity sought is "essential to the resolution of the matter." In a criminal case, the judge must determine that "there are reasonable grounds to believe that a crime has occurred."
When classified information is involved, the judge must conclude that the leaker is "a person with authorized access" to the information and that the disclosure "has caused or will cause significant, clear, and articulable harm to the national security."
At that point, the judge would have to balance, in making his decision, whether forcing disclosure of the source would harm future newsgathering more than the public interest gained from the merits of the story produced by the leak.
The bill does not protect disclosure of sources when possible death, kidnapping or substantial bodily harm is involved, or when a possible terrorist act could be prevented. In addition, it would not protect as journalists any individuals associated with "a foreign power," agents of a foreign power or people linked to organizations identified by U.S. government agencies as terrorist groups or activities. (WaPo 4-21-08)
Mukasey --- I know; color me surprised --- recently argued in a USA Today op-ed that the Free Flow of Information Act 'would put reporters above the law' and that it is unnecessary in any case.
Here's what Mukasey said:
If passed, this law inevitably would cause significant problems. The heavy evidentiary burden the bill would impose on prosecutors seeking information from reporters will impede investigations of serious crimes, including terrorism and other threats to the national security.
This burden would be especially difficult to carry in cases involving leaks of classified information — something we can scarcely afford in a time of war, and something that will encourage leaks by virtually assuring impunity. And although the stated goal of the legislation is to address subpoenas, by its terms the impact of the bill is not so limited, and it could implicate core national security authorities.
Notably, this new legislation would do nothing to ensure that even if the public's national security interests were demonstrated, reporters would provide necessary information. There is no requirement, for example, that the disputed information be deposited with or reviewed by a court pending the resolution of the case. The media are as free as ever to litigate, lose and still refuse to comply. (USAToday)
Cabinet officials have also expressed concern:
Defense Secretary Robert M. Gates argues that the broad class of people given legal protection as journalists in the bill "would have the unintended consequence of encouraging unauthorized disclosures" of classified information by leakers who believe they are protected. Gates also wrote that it would increase the nation's "vulnerability to adversaries' counterintelligence efforts to recruit" journalists.
Energy Secretary Samuel W. Bodman, whose agency runs the U.S. nuclear weapons complex, joined Gates in saying the bill could encourage "dissemination of classified information by giving leakers a formidable shield behind which they can hide."
Michael Chertoff, secretary of Homeland Security, stressed in his letter the need to carry out quickly probes of terrorist activities and other threats. But he said the "evidentiary burdens to obtaining critical information from anyone who can claim to be a journalist . . . ensure that criminals have opportunities to avoid detection, continue their potentially dangerous operations, and further obfuscate their illegal activities." (WaPo 4-21-08)
Mukasey and Mitch McConnell have told the Senate that they would recommend that Bush veto the Senate's version of the bill (which is supported, incidentally, by John McCain). (WaPo 4-21-08) In fact, as Specter points out, all three of the candidates have acknowledged the need for a shield law. (WaPo 5-5-2008)
As the shield statute only appears to contemplate rather moderate protections and doesn't protect 'disclosure of sources when possible death, kidnapping or substantial bodily harm is involved, or when a possible terrorist act could be prevented.' Moreover, it doesn't protect individuals associated with a foreign power or people identified as linked to terrorist groups or activities.' (WaPo 5-5-2008)
Specter --- who pointedly notes that he voted for Mukasey's confirmation --- says that of course he is concerned about national security and effective law enforcement. (WaPo 5-5-2008). He doesn't believe that the shield will interfere with either and disagrees with Mukasey's contention that the shield isn't necessary. Specter writes:
As evidence, [Mukasey] cited a few of the many important news stories that, even in the absence of a shield law, were brought to light because of sources who provided information to journalists under a promise of confidentiality. Pending media shield legislation would impede the investigation of crimes and threats to national security, he argued. As the ranking Republican member of the Senate Judiciary Committee, I strongly disagree with him....
If we are to have a free press, it is necessary to protect the relationship between journalists and trusted sources to whom journalists have promised confidentiality. For this reason, every state but Wyoming has established some form of reporters' privilege.
The federal courts are split, however, on whether reporters have a common-law privilege to withhold information from a federal court. Attorneys general of 34 states recently urged the Supreme Court to recognize a federal reporters' privilege because the lack of a federal standard undermines state shield laws and the public interest embodied in those laws. It takes only a few well-publicized cases of the government or federal courts forcing reporters to reveal confidential sources -- Time's Matt Cooper; former New York Times reporter Judith Miller spending 85 days in jail; or former USA Today reporter Toni Locy reporter being ordered to pay up to $5,000 for each day she remains silent, with no contributions allowed from her employer, family or friends -- to chill those who have important things to say. (WaPo 5-5-2008).
As Specter points out, the bill is not in fact intended to place journalists 'above the law' and may be modified to address concerns raised by the attorney general and others. Furthermore, the federal courts 'routinely balance liberty and security.' (WaPo 5-5-2008).
When time is of the essence and the stakes are high, courts typically defer to the factual judgments and expertise of those better situated to make certain decisions. But the courts need guidance from Congress regarding the standards they should apply to the varying facts and circumstances -- to the evidence -- when a reporter refuses to reveal confidential sources. That is what a media shield bill would do. It would not be a drastic change in the law, but it would be an important one(WaPo 5-5-2008).
I'm still worried that there is opposition to this bill. Perhaps I should be more concerned that we appear to need it. What other basic notions of freedom will we surrender --- or allow our officials to surrender on our behalf --- out of cowardice?
Memeorandum posted the article here.
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