Cabinet Officials Cite Concerns About Senate Version of Reporter's Shield Law


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By Walter Pincus
Monday, April 21, 2008

Last Monday, Sen. John McCain (R-Ariz.) announced his support of the Senate version of the reporter's shield law, now called the Free Flow of Information Act. His backing of the Senate bill took place at a meeting hosted by the Associated Press and, not surprisingly, drew headlines in newspapers around the country.

What has not drawn similar coverage are letters sent earlier this month to Senate leaders from Cabinet members in the Bush administration with national security responsibilities, describing in detail their concerns with the legislation.

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.

The House overwhelmingly passed its version of the legislation last October. But the Senate version has had a more difficult time getting to the chamber floor. News organizations have recently been pushing for a vote, citing subpoenas demanding identification of confidential sources in separate, ongoing cases involving New York Times reporter James Risen and former USA Today reporter Toni Locy.

There is no federal shield law, but 49 states have adopted their own. They provide different levels of protection of sources in cases brought under state law.

In their letter, Attorney General Michael B. Mukasey and Director of National Intelligence Mike McConnell point out that the new bill would require proving that a document is "properly classified," raising the prospect that "every leak investigation" would become "a mini-trial over the propriety of the government's classification system."

It would also require proving that the leaker "had authorized access" to the classified information, when the purpose of the subpoena to the reporter is to find out who that person is, they said. They also say proving that the information the leaker disclosed caused "harm to national security" would "lead to time-consuming litigation," which itself could require exposing other classified secrets.

Finally, they note that the terrorism exception is prospective only and would not help authorities identify sources in terrorist acts that had occurred.

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."

Whether these concerns are all valid, they deserve to be weighed publicly. At the minimum, they have led Mukasey and McConnell to tell the Senate leadership that if the present Senate measure were sent to the president, "his senior advisers would recommend that he veto the bill."

National security and intelligence reporter Walter Pincus pores over the speeches, reports, transcripts and other documents that flood Washington and every week uncovers the fine print that rarely makes headlines -- but should. If you have any items that fit the bill, please send them to fineprint@washpost.com.


© 2008 The Washington Post Company

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