By Walter Pincus
Washington Post Staff Writer
Sunday, September 24, 2006
The Senate Judiciary Committee has postponed consideration of a federal shield law for journalists after hearing strong new objections to the measure from the Justice Department.
The postponement all but guarantees that there will be no Senate action on the measure until Congress returns after the November elections. Even then, passage of the legislation is doubtful given powerful opposition in the House and from the Bush administration, according to congressional aides and non-government supporters of the measure.
One focus of administration opposition is a provision that would require the Justice Department, to obtain a journalist's testimony about sources of a leak of national security information, to convince a judge that the disclosure caused more harm to the government than benefit to the public. The judge would have to weigh the possible danger to national security against the public's right to know the information.
Under current law, no such balancing test is administered by a judge. Instead, a journalist who is subpoenaed to give up the source of such a national security leak has no protection unless he can prove the government's request is unreasonable or a form of harassment.
"In imposing a burden of proof on the government, it places a thumb on the scale in favor of the reporter's privilege and tips the balance against executive branch judgments about the nature and scope of damage or potential damage to our nation's security," Deputy Attorney General Paul J. McNulty told the Judiciary Committee at a hearing last week.
The bill also sends the wrong message to leakers, McNulty said, adding that "it may encourage their unlawful and dangerous behavior." The measure puts federal judges "into the altogether unfamiliar territory of having to weigh national security interests against the public's interest in receiving certain news . . . [and] as numerous judges have recognized, the courts lack the institutional resources and expertise to make those decisions," he said.
Sen. Jon Kyl (R-Ariz.), an opponent of the legislation, asked how a court would determine whether the government had met the burden of showing damage to national security outweighed public interest. "How would a court look at this?" Kyl asked McNulty. "Is there a body of law? Is there some kind of test?"
McNulty said the judgment would be up to individual judges and that "the intelligence community would try to muster all its information in some ex parte proceeding and present that as best as possible." He also suggested that just by going to court, "we are potentially signaling to our enemy, who may be involved in that story, that we believe that this disclosure is a significant harm."
Theodore B. Olson, solicitor general during President Bush's first administration, testified for the legislation, saying that he considers the handling of national security and law enforcement issues "properly addressed and fairly balanced." He pointed out, in response to McNulty's concerns, that "we do not recoil from judicial oversight of these types of decisions" when judges issue secret warrants under the Foreign Intelligence Surveillance Act "and there's no reason we should reject it when it comes to journalistic sources or communications."
McNulty called another section of the measure -- which requires that the leak involve "properly classified information" -- a significant problem with the bill. He said it would be a "big undertaking" for the government to supply experts to assess the damage that information leaked to enemies could cause the nation.
Sen. Arlen Specter (R-Pa.), the committee's chairman and a co-sponsor of the bill with Sen. Richard G. Lugar (R-Ind.) and Christopher J. Dodd (D-Conn.), told McNulty that the panel would continue pursuing the legislation while trying to "accommodate your interests."