Wikileaks controversy highlights debate over shield law

By Paul Farhi
Washington Post Staff Writer
Saturday, August 21, 2010

Until just a few weeks ago, news organizations thought they were cruising toward a long-cherished goal: Congressional passage of a federal shield law to protect journalists from being forced to reveal confidential sources.

Then came Wikileaks.

The notoriety surrounding's release of nearly 76,000 secret military documents last month has complicated, and possibly imperiled, enactment of shield legislation pending in the Senate, proponents and opponents of the measure both say.

Wikileaks apparently obtained the documents, describing the U.S. military's conduct of the war in Afghanistan, from a military source and posted them on the Internet. The release sparked praise and criticism, the latter from government officials who said the revelations could endanger U.S.-led forces and their Afghan allies. At the same time, Wikileaks made the documents available to the New York Times and two other news organizations, which published stories based on them. Wikileaks founder Julian Assange says that his group plans to release an additional 15,000 documents this month.

The shield legislation would protect journalists from having to reveal anonymous sources when challenged by prosecutors in federal court. The protection wouldn't apply in all cases, however. In matters involving terrorism and national security, government lawyers could ask a judge to remove the shield. The bill passed the House and a Senate panel last fall, and it may come up for Senate debate after the August recess.

Supporters of the bill point out that such a law wouldn't affect Wikileaks. As a "virtual" organization, with no fixed address or country of origin, Wikileaks isn't subject to U.S. law, meaning it couldn't be protected or subjected to disclosure by an American court.

Nevertheless, Wikileaks seems to be overshadowing the discussion.

"It's true that some members of Congress are concerned" in the wake of Wikileaks' disclosures, says Kevin Smith, president of the Society of Professional Journalists, which has been advocating for a shield law for years. "There's a guilt-by-association factor here."

But opponents of the legislation say it gives judges too much leeway to determine what's in the "public interest" when it comes to protecting journalists in cases involving national security. They fear that investigators would have to release sensitive information to convince a judge to force a reporter to reveal his sources. For these reasons, Sen. Jeff Sessions (R-Ala.), the ranking minority member of the Senate Judiciary committee, has called the bill "deeply and fundamentally flawed."

One Republican aide, who was not authorized by his boss to speak publicly about the issue, said, "The Wikileaks controversy highlights some of the significant national security concerns about the shield legislation." As a result, he predicted the measure would not move forward this year.

To avoid having Wikileaks color floor debate on the bill this fall, Sens. Charles E. Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) have signaled that they will draft an amendment that would specifically exempt organizations like it.

Although specifics of the amendment have not been released, supporters say it is likely to deny protection to organizations that simply disseminate confidential or classified material in raw form, while extending it to news organizations that vet documents and do contextual reporting on sensitive materials.

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