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Sparring Over a Shield

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From the Fall 2005 issue of The News Media & The Law, page 14. By Casey Murray Just a few…

From the Fall 2005 issue of The News Media & The Law, page 14.

By Casey Murray

Just a few weeks after New York Times reporter Judith Miller was released from jail, she and the U.S. Justice Department again squared off, this time at an Oct. 19 Senate Judiciary Committee hearing on a proposed law that could have saved her from incarceration &#151 a federal reporter’s privilege.

Miller and other journalists spoke strongly in favor of legislation to protect journalists from compelled disclosure of sources and materials in most, but not all, cases, while Chuck Rosenberg, U.S. attorney for the Southern District of Texas who represented the Justice Department, reiterated the government’s opposition to the idea.

“What is broken about the way we are handling matters involving subpoenas to the media?” he asked. “We rarely issue subpoenas to the media seeking information about confidential sources, and when we do, it is only after painstakingly careful review and meticulous adherence to our internal guidelines.”

The actual numbers, however, tell a different story. Although Rosenberg claimed the Justice Department has sought only 12 subpoenas seeking confidential sources from the media since 1991, the Justice Department’s own numbers prove that number false.

According to a December 2001 report from the Department of Justice, the agency said it had authorized 88 subpoenas of the news media since 1991. Of those 88, 17 sought information that could identify a reporter’s source or source material. In eight of those 17, the department did not negotiate with the media prior to filing the subpoena, violating its own guidelines.

And since 2001, the department has approved subpoenas seeking confidential sources from at least seven reporters in high-profile cases.

Rosenberg also overstated the effect the proposed bill would have on law enforcement, according to Kurt Wimmer of Covington & Burling.

“The Department claims that the bill would (1) prevent them from issuing subpoenas without going to court; (2) that this ‘mini trial’ would require them to lay out all of their investigative evidence; and (3) that this proceeding would have to occur in open court. Each of these three claims is simply incorrect,” Wimmer wrote in an e-mail.

“In practice, the [proposed privilege] would set up a straightforward motion to quash procedure that is familiar in everyday Federal court practice,” Wimmer added.

Rosenberg’s oral and written testimony quashed any hope that the Justice Department had warmed to the possibility of a federal shield law. Over the summer, the department opposed an earlier version of the bill, the “Free Flow of Information Act of 2005,” but its authors, Indiana Republicans Sen. Richard Lugar and Rep. Mike Pence, among others, changed the measure to allow for compelling the disclosure of a source’s identity if it is necessary to prevent “imminent and actual harm to national security” and the the harm to be prevented is outweighed by the “public interest in protecting the free flow of information.”

Thirty-one states and the District of Columbia have shield laws and nearly every state has at least some court-recognized qualified privilege. However, the federal law has been murky since the 1972 U.S. Supreme Court decision in Branzburg v. Hayes that journalists have no First Amendment privilege to withhold confidential sources from a grand jury investigation. Now, there are no comprehensive federal guidelines since many of the circuits are split on the interpretation of that decision.

The Justice Department has guidelines limiting when and how federal prosecutors may subpoena journalists, their notes or their phone records, and those guidelines should be enough to protect the media, Rosenberg said.

Former U.S. Attorney Joseph diGenova told the Senate panel to consider codifying the Justice Department guidelines for subpoenaing the media.

“Given the purported success of these guidelines, Congress should enact them into law,” diGenova said.

In response to a question from Sen. Dianne Feinstein (D-Calif.), Rosenberg said the department does not support making the guidelines law because it could slow progress on a subpoena during times when “we need to move fast.”

“Is that your argument, to have no bill at all?” Feinstein asked.

“Yes,” Rosenberg replied.

He summarized the department’s position as “a fundamental objection to the principle of a reporter’s privilege as an exception to every citizen’s duty to give testimony in a federal criminal proceeding.”

His chief concern, he said, is that the bill would hurt the national security because it “imposes inflexible, mandatory standards in lieu of existing voluntary guidelines that can be adapted to changing circumstances.”

The guidelines state that the government should not seek information unless the information is highly material and relevant, necessary or critical to the claim and unavailable from alternative sources.

“We should not enter this debate believing that the First Amendment is under assault by the Department of Justice,” he said. “Manifestly it is not.”

Media representatives who testified after Rosenberg strenuously disagreed.

“Journalists are increasingly being subjected to federal subpoenas since 9/11,” said Miller, who was jailed for nearly three months for refusing to reveal her confidential source and whose plight helped re-ignite the debate over a federal reporter’s shield law. “More than two dozen reporters have been subpoenaed in the past two years and are in danger of going to jail. If the current trends prevail, the Alexandria Detention Facility may have to open an entire new wing to house reporters.”

Miller was released from jail on Sept. 30 after agreeing to name a confidential source she talked to regarding the identity of CIA operative Valerie Plame. She was jailed because she refused to identify her source to special prosecutor Patrick Fitzgerald, the U.S. attorney in Chicago, who has spent two years investigating who outed Plame, the wife of Joseph C. Wilson IV, who wrote a column published in The New York Times criticizing the administration’s intelligence regarding the war in Iraq.

Although the source, I. Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff, had given her a blanket waiver of his confidentiality more than a year ago, she had refused to testify because Miller and her lawyers were not convinced that it had not been coerced. There remains a dispute between one of Miller’s lawyers, Floyd Abrams, and Lewis’ lawyer, Joseph Tate, over whether the waiver was coerced or not. Abrams said that Tate told him Libby had to sign the waiver in order to keep his job but Tate vigorously denies that claim.

In her grand jury testimony on Sept. 30 and Oct. 12, Miller said she talked to Libby in 2003 but did not think that he told her Plame worked for the CIA. She also testified that she cannot remember who originally gave her the name “Valerie Flame,” which she wrote in a notebook that she discovered at her Times desk after her release.

Sen. Arlen Specter, (R-Pa.), chairman of the Senate Judiciary Committee, is using the Miller case and surrounding publicity to push for a federal shield law.

“There is no doubt about the value of investigatory reporting to the public interests in exposing corruption, malfeasance, misconduct and waste,” Specter said at the Oct. 19 hearing.

The proposed bill, the “Free Flow of Information Act of 2005,” would require the party seeking the compelled disclosure to show that it attempted to obtain the information from non-media sources and that the testimony is “essential” to the investigation. In addition, when the testimony involves confidential sources, the party seeking the information would need to show that disclosing the source’s identity is necessary “to prevent imminent and actual harm to national security,” and the harm to be prevented is outweighed by the “public interest in protecting the free flow of information.”

Specter held the hearing to hear both sides of the debate and from Miller herself about her experience, which she said shows the need for a federal reporters privilege to protect the media’s confidential sources.

“Confidential sources are the life’s blood of journalism,” Miller said. “Without them, whether they are in government, large or small companies, or in nonprofit organizations, people like me would be out of business.”

ABC News President David Westin, who has a background as a lawyer and a journalist, reiterated the importance of confidential sources.

“There are some stories, however, that simply would never come to our attention or that we could not report without the ability to give some protection to sources who do not want to be publicly identified,” Westin said. “Often, these are stories about wrongdoing &#151 either in government or in corporations.”

Protecting confidential sources does more than just protect the media, according to Dale Davenport, editorial page editor of The Patriot-News in Harrisburg, Pa.

“A shield law is not about protecting journalists,” Davenport said in his prepared testimony. “A shield law primarily protects those thousands upon thousands of ordinary Americans who facilitate the free flow of information. They are helping journalists get the information and report the story, often anonymously and often not by choice.”

While Davenport thinks the privilege protects citizens, others are not convinced. Steven Clymer, professor of law at Cornell Law School, thinks a shield law would grant reporters a stronger privilege than doctors and lawyers. He also agreed with Rosenberg that the privilege could harm the country in the event of a national security crises.

“These laws are designed to safeguard information that if improperly disclosed, could jeopardize not only national security, but the safety of law enforcement officials, such as information about whether a search warrant is going to be executed, it could undermine criminal investigations and it could destroy reputations of innocent people,” Clymer said.

The journalists on the panel said that Clymer and Rosenberg were vastly overstating their point.

“I know of no case where disclosure of a confidential source would have protected citizens of my state or our nation,” said Anne Gordon, managing editor of The Philadelphia Inquirer.

The next step for the bill is uncertain. The Judiciary Committee will be focused on confirmation hearings for Supreme Court nominee Harriet Miers, but Specter said he does not plan to let the reporter’s privilege issue die.

“[Miers] slows things down entirely,” Specter said after the hearing. “But I’d like to report this bill out of committee. We’ve heard enough information now.”