By Walter Pincus
Washington Post Staff Writer
Saturday, October 31, 2009
The White House and key senators have reached a compromise on a shield law to protect journalists who refuse to reveal their sources, but they limited its application in cases involving national security and federal criminal prosecutions.
Negotiations involving Senate sponsors of the legislation, the Justice Department, the White House and media organizations over the past month resulted in compromises on all sides.
Sen. Charles E. Schumer (D-N.Y.), a sponsor of the measure who led the negotiations, said in a statement Friday that the new version "preserves a strong protection for reporters interested in protecting their sources, while also making sure that the government can still do the job of protecting its citizens."
The Obama administration, while favoring a shield law in principle, this month took the position that national security cases should be exempt from a "balancing test," in which a judge weighs the importance of the public having certain information against the damage such disclosure could do to national security.
The new compromise handles national security cases in different ways. When the government can show that disclosure of a source of information is necessary to prevent or mitigate a terrorist act or identify a perpetrator, there will be no balancing test.
For example, if a journalist independently gathers and publishes a story describing a terrorist cell in the United States that was planning an attack, the government could subpoena the journalist even though the information disclosed did not come from government sources.
In criminal investigations triggered by leaked classified information, the government has to show "by the preponderance of evidence" that the information is likely to cause significant harm to national security.
Though there will be no balancing test, the journalist can argue in court that the information involved is not as significant as the government asserts.
Under the new version of the legislation, not all cases of classified leaks would be exempt from the balancing test. In cases in which the information published has to do with past classified activities or practices, there can be a test.
In criminal cases, the compromise puts the burden on the journalist to establish in court why the public interest would be harmed by the disclosure of a source or sources. The government or defense attorney would need to show only that the information sought is essential to the case.
The compromise also expands the definition of those covered, eliminating previous language that required those individuals to be employed by or to have a contract with a news organization. Under the new language, protection would be available to people who have the "primary intent . . . to disseminate to the public news" from the "inception of the newsgathering process."
As a result, coverage would be available to freelance authors, people who write for local news outlets without pay and, potentially, to many bloggers.
Remaining in the bill from early Senate drafts is language that excludes from coverage agents of foreign powers or people on government lists of terrorist organizations, or anyone providing material support to those organizations or "aiding, abetting or conspiring in illegal activity" with anyone on the lists.
That language, which is also contained in the shield law bill that passed the House in March, is designed to prevent propagandists for terrorist organizations from being protected, according to media supporters of the legislation. It is not clear how it would relate to journalists working in the United States for media owned by foreign governments, such as al-Jazeera, which is owned by the Qatari government.
Under current plans, the compromise bill is expected to be brought up for a vote in the Senate Judiciary Committee meeting scheduled for Thursday.
At the White House, spokesman Ben LaBolt said, "We expect this proposal to move forward with bipartisan support, and the president looks forward to signing it into law."