Guest Blogged by BRAD BLOG’s D.C. Correspondent, Margie Burns
It was a big day on Thursday in the national capital, with several flaming surges hitting the news at once ““ the Washington Post hooking up with the MSM campaign to put “Hillary” over the top before the magic deadline of October 15 (more on that later, elsewhere); Rep. Henry Waxman and the House Government Reform and Oversight Committee holding a powerful hearing on Iraqi corruption; the blocking of Hans von Spakovsky’s nomination to the FEC; and discussion of a proposed federal shield law for journalists (full text of bill here), which was reported out of the Senate Judiciary Committee today to the full Senate.
While I was able to sit in for hearings on two of the items above, space and time regrettably being constraints, I’ll cover only the proposed shield law for the moment. Right up top, I have to say that I have qualms about it. A real leak, by a whistleblower exposing a crime or some danger to the public, is one thing. But protecting journalists from exposing a politically motivated ‘source’ trying to plant misinformation is another. This bill, as it was debated in committee and written about in papers yesterday, might equally protect both, if it protects either…
S.2035, the “Free Flow of Information Act of 2007,” was introduced on September 10, 2007, by Sen. Arlen Specter (R-PA) with four co-sponsors ““ Senators Chris Dodd (D-CT), Lindsey Graham (R-SC), Charles Schumer (D-NY), and Richard Lugar (R-IN). The bill closely resembles but expands on S.1267, same title, introduced on May 2, 2007, by Lugar. The companion bill in the House was H.R.2102, also same title, introduced at the same time by Rep. Frederick “Rick” Boucher (D-VA).
In fact, either Lugar or his Indiana GOP colleague, Rep. Mike Pence, has introduced a version of this legislation every year starting in 2005, pretty much the duration of the CIA-Plame leak investigation if memory serves. Presumably the bill was drafted largely in response to Judith Miller’s situation.
Today’s Washington Post carries two op-eds on the bill: a column critical of it by US Attorney Patrick J. Fitzgerald, and a column supporting it by former Solicitor General Theodore B. Olson. The Post is also running an editorial today supporting the bill themselves.
The Olson column seems, at a couple of points, responsive to the Fitzgerald column, but the assistant editor I got hold of at the Post did not know whether Olson had been given/informed about the other piece, and said courteously that he was not sure “that’s information we’d be allowed to give out.”
Not being a lawyer myself, I cannot determine exactly what the proposed legislation will do, although I know that I am very leery of this bill ““ even aside from looking at its roster of supporters and its timing in regard to the Plame-CIA leak and the Libby trial.
One point to make is that from either the angle of protecting journalists or that of compelling disclosure, it seems to have a loophole big enough to drive a newspaper delivery truck through:
(a) Conditions for Compelled Disclosure- In any proceeding or in connection with any issue arising under Federal law, a Federal entity may not compel a covered person to provide testimony, or produce any document, relating to protected information, unless a Federal court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to such covered person–
(1) that the party seeking to compel production of such testimony or document has exhausted all reasonable alternative sources (other than a covered person) of the testimony or document;
(2) that–
(A) in a criminal investigation or prosecution, based on information obtained from a person other than the covered person–
(i) there are reasonable grounds to believe that a crime has occurred;
(ii) the testimony or document sought is essential to the investigation or prosecution or to the defense against the prosecution; and
(iii) in a criminal investigation or prosecution of an unauthorized disclosure of properly classified information by a person with authorized access to such information, such unauthorized disclosure has caused significant, clear, and articulable harm to the national security; or
(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than the covered person, the testimony or document sought is essential to the resolution of the matter; and
(3) that nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information.
As suggested above, one immediate question about the bill is whether it at all distinguishes between a leak and a plant.
One of the most worrisome comments in Olson’s op-ed column, particularly because it seems pretty casual and unexamined, is Olson’s use of not only the Plame case but the Wen Ho Lee case as points in SUPPORT of the proposed shield law. Olsen writes:
Without getting into the question of how “routine” federal subpoenas for journalists actually are, and setting aside Olson’s predictable partisanship against Plame, the Wen Ho Lee case is no sterling example of disclosure that should be protected at all cost. Like Steven Hatfill, outed in connection with the FBI investigation of those (unsolved) anthrax mailings to a whole slew of journalists at once, by a concomitant number of anonymous government officials, Wen Ho Lee has been acknowledged to be the target of a concerted hit by government and media.
A genuine leak is one thing. A little group of unnamed administration officials violating policy by divulging personnel matters in a concerted op to discredit a targeted individual, for political reasons, is quite another.
Obviously it would be difficult to formulate this distinction in a law. How do you legislate in a way to protect journalists whose sources are genuine whistleblowers, acting in the public interest, without granting some kind of immunity to journalists and their administration abettors who are genuine snakes?
But the problem is a real one. Hatfill’s becoming the object of a media frenzy may very well have impeded or complicated whatever genuine investigation there was, into those anthrax mailings. The overblown and lurid accusations against Wen Ho Lee complicated diplomacy with China, again assuming there was any, and presumably clogged and complicated any genuine investigation.
The motivation behind the proposed legislation — to be brought up on the Senate floor some time in the next several weeks, presumably ““ is undoubtedly mixed; a combination of genuine sympathy for reporters on one hand, and the in-crowd trying to protect government’s ability to use favored media as an arm of one branch of one administration, on the other. Opposition seems mixed, too, in a strange-bedfellows sort of way: while the bill was invented by GOP senators, the only two senators on Judiciary to vote against it — Kyl of Arizona and Brownback of Kansas — are also GOP, as are the two who passed, Sessions of Alabama and Coburn of Oklahoma. Seeing Kyl try to slow up/amend the bill gave me some sympathy for him, too.
I would welcome some feedback on this piece. I’ve already seen both points of view expressed elsewhere.
Meanwhile, the Post editorial, short but not too short to be disingenuous, reminds me why I don’t read editorials:
Actually, prosecutors are already prevented from “going after reporters as a first resort,” since the DOJ has guidelines against exactly that. But the Post, which replies to Fitzgerald’s piece though not Olson’s, seems not to have given the prosecution a final rebuttal.
Brad, thank you for bringing some balance to the public discussion of this issue. It’s pretty hard to get the pro-privacy side out when every major newspaper and all of their various trade associations are pushing for a bill that will really open up the sluices for anonymous smears like those in the Hatfill case. (Full disclosure: I represent Dr. Hatfill, though the comments below are my own.)
Your distinction between whistleblower cases and anonymous smear cases is right on the money. I’ve written about that here and here. And actually, it’s not that difficult to write such a distinction into law. Congress already has laws on the books that protect some kinds of disclosures and prohibit other kinds. For example, the Whistleblower Protection Act of 1989 protects any federal employee who discloses information about violations of law, gross mismanagement or waste, abuses of authority, or threats to public health or safety. 5 U.S.C. sec. 2302(b)(8). By contrast, the Privacy Act of 1974 requires government officials to maintain the confidentiality of the records they maintain on individual citizens, and places significant restrictions on the extent to which private information about an individual can be disclosed without that individual’s consent. 5 U.S.C. sec. 552a. So not only can Congress draw the distinction you suggest, it already has.
It would be a piece of cake for Congress to draft a shield bill in which the treatment of the reporter depended on whether the source fell into one category rather than the other. For example, Congress could provide for disclosure of the leaker’s identity if the leaker violated the Privacy Act (as in the Hatfill case), but for continued anonymity if the leaker qualified for protection under the Whistleblower Protection Act.
Unfortunately, Big Media wants nothing to do with a narrowly tailored solution to the whistleblower problem. They are asking for a blanket privilege that covers everything from hard investigative journalism to cocktail party gossip, subject to very narrow exceptions that have mostly to do with national security. In my opinion, they have adopted this strategy not only because whistleblowers make better poster children than the people who smeared Hatfill and Lee, but also because the cases they really want to cover with a shield are cases where the journalism is so irresponsible that no one would be inclined to pass a shield law. I suspect they would even be quite happy to give in to their critics on the national security issues because those aren’t the cases that generate the subpoenas in the first place. What we’ll be left with is a privilege that has no positive effect on the flow of truthful and important information to the public, but does make it much harder to do justice for the victims of anonymous smears.
Again, thanks for picking up on this important story.
Does this really make any difference at all when we know for a fact that the MSM is fully complicit in all the crimes committed by this fascist administration?
The MSM has without question covered up the Election Fraud, the crimes committed to take the country into an unjust illegal occupation of Iraq, the cover up of what really happened on 9/11 and so on.
So what, the MSM which is total Reich wing propaganda can now be unfettered in their lies.
The bigger point is, the higher up you are…it seems you don’t have to follow any laws anyway! Then if you DO happen to actually break the law and lose in court…you get a pardon!
I wouldn’t trust Olsen’s motives to be non-partisan, but I would trust Fitzgerald’s. There should be decent, codified national protection, but this isn’t it.
Mark Grannis –
First off, credit where it’s due. Margie Burns filed this piece here after she sat in on yesterday’s hearings. Though she and I had compelling conversations about the piece (and the issue) before she filed it, because it’s such an interesting question. Particularly from the POV that both she and I come from (as journalists).
Secondly, your proposed solution:
…Is also very informative and helpful. So thanks for ringing in on this topic.
Doesn’t seem to be a particularly sexy one for most folks. Or perhaps the MSM would prefer less coverage/discussion/debate rather than more. Or perhaps it’s just far too nuanced since it doesn’t fit neatly into the (lazy) Right/Left dichotomy of most issues these days.
I hope we’ll see more discussion before this thing moves through as is.
My apologies to Margie Burns. I noticed the mistake after I posted, but it was too late.
The government would like to have the language necessary to silence anyone speaking against them, especially with incarceration.
The media would like to have the assurance that this cannot EVER happen.
Both the government and the media would like the rules written so as to protect either the government story plant or the media’s truthful reporter.
These are mutually exclusive goals, and any legislation which includes phraseology necessary to accomadate both aims will be unconstitutionally vague,
The most important realization is that the Bush Administration has used every means to undermine 200 years of US court precedent and legal process, with things like The Patriot Act, NSA irregularities, and such.
As with those efforts, rest assured that this law will be utilized to obfuscate and delay any whistleblower case, especially national security cases, for as long as is necessary to subvert the correction of the problem which has been revealed. Justice denied.
Which is exactly what Bush has always intended, with signing statements, Plame leaks, and the rest of his crud.
So how about this, fellow citizens:
Do not pass ONE MORE PIECE OF LEGISLATION while Bush is in office.
It will either be exactly what he needs to wreck the place some more, or if he disagrees, signing statement it into impotent meaninglessness.
Let’s not waste our legal time anymore, Bush is not worth the effort.
Do not pass ONE MORE PIECE OF LEGISLATION while Bush is in office.
It will either be exactly what he needs to wreck the place some more, or if he disagrees, signing statement it into impotent meaninglessness.
Let’s not waste our legal time anymore, Bush is not worth the effort.
Or we could just Impeach the treasonous little war criminal.