Vote on Journalist Shield Stalled

Senate Republicans yesterday blocked a vote on a controversial law that would protect reporters from having to testify about their confidential sources, refusing to begin debate until the chamber addresses a bill that would promote more domestic oil and gas production.

The new version of the shield law was introduced Tuesday by Arlen Specter (Pa.), ranking Republican on the Senate Judiciary Committee; Sen. Charles E. Schumer (D-N.Y.); and Sen. Richard G. Lugar (R-Ind.). It includes provisions that would make it easier for the government to force reporters to disclose their sources in cases involving a leak of classified information.

In the previous version of the Senate bill, the government, in order to subpoena a reporter in a case involving national security information, would have had to prove by the preponderance of the evidence that the information it sought was essential to the investigation and that it had exhausted all other methods to discover the source of the leak. Attorney Gen. Michael B. Mukasey, in an April 2 letter to Senate leaders, had criticized that evidence provision, which has been dropped.

The new version would also make more difficult any challenge by the reporter based on whether the information involved is "properly classified" or whether its disclosure would harm national security.

Mukasey said in his April letter that trying to show classification and harm would require release of more secret information. The new bill would permit the government to file material under seal in making those arguments.

In response to objections from some Republican senators, the new version expands the list of exceptions for which protection would be precluded if the disclosure of a source could prevent criminal activities. The list, which previously included terrorism, murder and kidnapping, now also includes sexual exploitation of children and child pornography.

Schumer said the changes address "many concerns that the intelligence community voiced that made it difficult to prosecute leaks." He called the new version "a fair compromise," and said he hopes it will come up in September when the Senate returns from its summer recess.

Last October, the House, by a vote of 398 t0 21, passed its version of shield legislation. It differs in several respects from the new Senate version.

At a House Judiciary Committee hearing last week, Mukasey questioned the basic concept of the bill. It would require a federal judge, in determining whether to order a reporter to disclose a source, to decide whether the harm done to national security by the news story was more serious than the harm done to the public's interest in having such information published.

"The showing that the danger exceeds the value of disclosure . . . is a complete imponderable," Mukasey said. "That would require the government to come in and basically make a bad problem worse by articulating precisely how threatened disclosure could cause yet more harm."

"What I'm not willing to do is to take steps that will essentially do more to protect leakers than it does to protect journalists," Mukasey said.

In a current case involving a local reporter, U.S. District Judge Cormac J. Carney last Friday refused to order Washington Times reporter Bill Gertz to disclose the sources for his May 2006 story about an espionage case. Gertz invoked his Fifth Amendment right against self-incrimination.

Carney excused Gertz and said the public interest in reporting outweighs the court's interest in determining the identity of the government sources in what the judge had determined was a leak of grand jury information to the reporter.