Holder: Justice can support shield law, with limits

Jonathan Jones | Reporter's Privilege | Feature | June 17, 2009

Attorney General Eric Holder told senators Wednesday that the Department of Justice would support a media shield law as long as it did not hamper government's efforts to protect national security and to discover the identities of people who leak classified information.

"The Department (of Justice) and (the Obama) Administration can support such a bill," Holder told the Senate Judiciary Committee. "Our concern is that it doesn't constrain our ability to protect national security." He said it is key that the bill allow the Justice Department to prosecute those who leak national security information.

His comments came during a wide-ranging oversight hearing that included testimony about the proposed shield law, the controversial photographs showing detainee abuse and the state secrets privilege. 

Democratic Sens. Charles Schumer and Patrick Leahy, the committee chairman, encouraged Holder to work with the committee on getting a media shield law passed. Ranking Republican Jeff Sessions took a more critical stance, calling the shield law a piece of "dangerous legislation."

On the photographs of detainees being abused in U.S. custody, Holder reiterated the government's position that they ought not be released. The ACLU sued for access to the photographs under the Freedom of Information Act; both a federal trial court and the U.S. Court of Appeals in New York (2nd Cir.) have ordered the photographs released. The administration has until July 9 to ask the U.S. Supreme Court to hear the case.

In the meantime, Congress has considered a law that would allow the White House to withhold the photographs.

Sen. Lindsey Graham, R-S.C., a sponsor of that legislation, asked Holder whether he thought an executive order from the president, in the absence of congressional action, would carry the authority to overturn the appeals court should the Supreme Court decide not to take the case.

"We hope we'll be successful in the courts," Holder said. "If we're not, we'll review our options." 

Graham said the Senate will soon bring a standalone bill to the floor that would give the White House the authority to withhold the photographs; an earlier attempt to find a legislative solution came in the form of an amendment to a war spending bill. That amendment was stripped by the House.

At another point in the hearing, Graham said he had spoken with White House Chief of Staff Rahm Emanuel earlier Wednesday: "He's indicated to me that (Obama) will not let these photos see the light of day," Graham said. 

On the state secrets privilege, which the government can assert in court  when it believes litigation of a case could endanger national security, several Republican senators were supportive of the Justice Department's decision to continue asserting the privilege in cases where the Bush administration had first raised it.

Other senators asked Holder for the administration's position on the State Secrets Protection Act, a proposed bill that would give broader judicial oversight to the privilege when it is asserted. Unless the Justice Department weighs in quickly, Leahy said the Judiciary Committee would move the bill without its input.

The Bush administration opposed that legislation.

Holder said the Justice Department was reviewing about 20 cases that have involved the state secrets privilege in its effort to come up with proposals that might alleviate the need for the separate legislation. He said they would have those proposals to the Senate "in a matter of days."

During a brief exchange about the extent of warrantless wiretapping, Leahy questioned why members of Congress are learning about classified programs from the news media instead of the Justice Department. He pointed to an article in Wednesday's New York Times as an example.

"We're reaching a point where, mark The New York Times top secret," Leahy said. "We get the information quicker. We get it in more detail, and we get the crossword puzzle."