Thursday, October 18, 2007

No To A Federal "Shield Law"

On Tuesday, the US House of Representatives approved and sent to the Senate legislation to create a so-called Federal "shield law" for journalists. This bill widely expected to be vetoed by President Bush, would create a "reporter's privilege," somewhat akin to the attorney-client or priest-penitent legal privileges, which would exempt "journalists" from having to reveal their sources to Federal grand juries or in other federal court proceedings.

To begin with, the proposed legislation is pernicious on ideological grounds because it recognizes journalists as a different, higher life-form than the rest of us ordinary citizens. Determining who is a journalist under the vague definition of “covered persons” in Section 4 of the House's bill will provide hours of fun for lawyers, commentators and courts. The House bill helpfully clarifies that “foreign powers” or agents thereof, and terrorists aren’t “covered persons.” Gee, thanks for small miracles, and bully for us. Clearly, the first thing Chinese intelligence or Hezbollah needs to do is buy a newspaper or a network and hire some journalists.

The proposed legislation has serious national security implications. If, for example, CIA Employee X, who lost the policy argument, and who doesn't like the policies of the Bush administration, violates both his oath and the law by leaking the existence of a secret wiretapping program that spies on Al Qaeda bigwigs to the New York Times, which then prints the expose in a Page 1 story -- destroying the effectiveness of the program, the reporter, under current law, can – and should -- be compelled to tell a court who his source is -- and CIA Employee X may, or may not, go to jail.
The bills do have some carve-outs, but they are essentially meaningless: the Senate version would remove the shield if a court found by a "preponderance of the the evidence" that "protected information" would "assist in preventing a specific case" of terrorism against hte United States or "significant harm to national security" that would "outweigh the public interest in newsgathering." The House version is even stricter. How would a court analyze "significant harm" or the ability to "assist in preventing a specific act of terrorism" without even more disclosure ? Maybe we can ask Al Qaeda to provide us some expert witnesses.

The First Amendment, which guards the liberty of the press, protects the right of a reporter to publish his story, and, properly, immunizes him from prosecution for so doing -- but it does not in any way mean he cannot be compelled to give up his source, when his source has no legal right to give him information. The journalist is not a journalist only, but a citizen too, and the liberty of the press gives the journalist no right to protect the identities of persons in the face of the right of the authorities to find evidence.

The unauthorized disclosure of materials in government files is often a crime. 18 U.S.C. § 641 bars the theft of public money, property and records; and 18 U.S.C. § 798 provides for punishment of whoever “knowingly and willfully communicates, .furnishes, transmits, or otherwise makes available to an unauthorized person. . .any classified information…” which among other things includes information concerning the communications intelligence activities of the United States; or information obtained by such activities. Moreover, the Espionage Act (18 U.S.C. § 793 et seq) prohibits the disclosure of national defense information which could be used to the injury of the United States.

Persons with security clearances are under oath to keep classified information confidential. The shield legislation pending in Congress would mean that the journalists (such as those writing the article in the New York Times that exposed the Treasury Department’s funds tracking programs; or the authors of articles describing classified details of the NSA’s surveillance programs) could not be compelled to give up evidence – that is the names of government employees who have violated the law and their service oaths by leaking to the press. The fact that the government has not (yet) gone after the leakers is shameful and a national scandal, and this legislation makes the problem worse: in practical terms, abetting an open season on leaking by making it virtually risk-free.

It is, as Seth Leibshon and Andrew C. McCarthy, argue this morning in National Review Online, absolutely “mind-boggling that Congress would take what is very likely criminal behavior and turn it into immunized behavior”(emphasis in original).

Contact your Senators! I hope and believe this legislation will be rejected in the Senate; and in the event, it passes, I believe the President will veto it. But the Senators need to be reminded that citizens have rights also -- the right to have our security secrets kept confidential when necessary; the right to have political decisions made by the elected officials constitutionally charged with making them, and not by disgruntled bureaucrats using the press to carry on turf-wars; and, the right to expect that our fellow citizens will give evidence when they are called on to do so. This bill needs to be stopped.

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