Leaks Questions Slow Reporter Shield Law

By Walter Pincus
Washington Post Staff Writer
Saturday, September 19, 2009

A congressional push to enact a federal shield law for journalists is being held up by disagreement with the Justice Department on how to deal with cases that involve leaked national security information, congressional and media sources say.

The Justice Department wants to do away with a "balancing test," in which a judge would determine whether making a reporter disclose a source is more important than the public interest in the information presented, according to these sources. Instead, the department wants to be able to subpoena reporters, after convincing a judge that the information involved is classified and harmful to national security.

Sen. Charles E. Schumer (D-N.Y.), a co-sponsor of the bipartisan legislation, has discussed the issue with Attorney General Eric H. Holder Jr., he said at Thursday's Judiciary Committee meeting. Schumer added: "We are well on our way to working out a compromise."

Sen. Dianne Feinstein (D-Calif.), another Judiciary member and chairman of the Senate Select Committee on Intelligence, said that, after conferring with the heads of intelligence agencies, she has "some concerns with this bill with respect to national security." But she said that, with Schumer, she hopes to work them out with the administration.

Feinstein said that she is troubled with the "constant drumbeat" of leaks, and that she fears the bill, as proposed, "can make the situation worse" by making it more difficult to prosecute leakers. She said the "critical portion" is the balancing test, which, at present, neither she nor the Justice Department can accept.

Justice Department spokesman Matthew Miller would not discuss on Friday any meetings with members of Congress, but he pointed to Holder's June 17 testimony before the Judiciary Committee as reflective of the attorney general's position. Holder said then: "The concern we have is . . . making sure that the bill doesn't impede our ability to protect national security or our ability to prosecute those who would leak national security information." Holder added: "Even given those concerns, I think there is a way in which we can construct a bill that all would find acceptable."

Several Republican senators, including Jeff Sessions (Ala.), the ranking GOP member on Judiciary, have voiced opposition to the bill.

In a statement, Kevin Z. Smith, president of the Society of Professional Journalists, said, "We are disheartened by the unexpected delay."

A version of the bill easily passed the House on a voice vote in March.

Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press, said Friday she always thought it would be difficult to get a balancing test when it came to national security information.

She said that despite President Obama's campaign pledge to support a shield law, his executive-branch officials have taken a hard-line position on criminal leak investigations, including those involving national security matters.

At a Judiciary Committee hearing on Wednesday, FBI Director Robert S. Mueller III said he remained personally opposed to shield-law provisions that could impede national security investigations. He took the same position in a letter sent to congressional leaders in January 2008, signing with other heads of intelligence agencies. Defense Secretary Robert M. Gates sent a similar letter in March 2008.

Schumer said Thursday: "We are working with the administration on the national security concerns, and we believe we will have a good bill with bipartisan support."

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