Sense of security

A proposed federal shield law raises questions about how a reporter’s privilege affects journalists who cover national security.

From the Fall 2006 issue of The News Media & The Law, page 11.

By Elizabeth Soja

In times of war, journalists who report on national security issues have traditionally seen their rights limited in the name of safety and security. But what happens when the war never ends?

The United States’ ongoing “war on terror” could present a difficult situation for reporters who cover the issues that surround the war and the nation’s security, especially in their dealings with confidential sources.

Surprisingly, no prosecutor has yet cited national security interests as the reason for subpoenaing a reporter during this war on terror. Although the jailing of former New York Times reporter Judith Miller for refusing to reveal who told her the name of CIA operative Valerie Plame appeared to involve matters of national security, the prosecutor never relied on such an argument and the matter was later revealed to be a perjury investigation.

Nevertheless, Miller’s situation heightened awareness that a reporter could, in theory, be subpoenaed and jailed more easily in the name of national security in the wake of the Sept. 11 terrorist attacks. Some members of the media are also worried because they say the Bush administration has been especially secretive and concerned about leaks to the media.

These factors together have strengthened the outcry for some kind of federal protection for journalists who cover the government and national security, since the vast majority of cases relating to security would end up in a federal court.

Currently, reporters only receive protection on the federal level through case law in some of the circuits, or through the Department of Justice’s media subpoena guidelines, which require that the department exhaust all alternative sources for the information and show that the information is essential to the case. The department’s guidelines, however, are self-imposed and nonbinding.

There is disagreement about just what form any binding and official protection should take.

Some argue that a federal shield law that would allow reporters to refuse to testify about the identity of an anonymous source is the most viable option.

Even though 49 states and the District of Columbia all afford reporters some kind of protection, federal shield law proposals have been floating around Congress for more than 30 years without ever being signed into law. The first version was introduced in 1972, during Richard Nixon’s presidency, and several subsequent versions were proposed during the 1970s and 1980s.

‘An important first step’

The most recent Senate version of the federal shield law, introduced by Sens. Richard Lugar (R-Ind.) and Arlen Specter (R-Pa.) in May, would give journalists only a qualified privilege. A journalist could only be “shielded” from handing over notes or disclosing the identity of a source when there were no other sources for the information, and the information was essential to the case. Additionally, the public’s interest in the information had to outweigh the interest in newsgathering.

The bill also carved out a specific exception for cases of leaked classified government information and created a slightly altered balancing test. In those cases, prosecutors would have had to show that the leak “seriously damaged the national security,” that there was no other way to get the information, and that the harm caused by the leak clearly outweighed the value of publishing the information.

An exception like this may have applied in Miller’s case.

However, under the proposed shield law, if the information sought related to a real and imminent act of terrorism with the potential cause “significant and actual harm,” a prosecutor would only have had to show that there was a threat of this magnitude and that they needed to know the information.

The Bush administration and the Department of Justice opposed this most recent version, called the Free Flow of Information Act, but there is some hope that a law could be passed in the new few years because of the bipartisan support for the legislation.

Breaking with the president, Specter co-sponsored the bill in the Senate and former Solicitor General Theodore Olson testified before the Senate Judiciary Committee on Sept. 20 that as a former employee of the Department of Justice, he didn’t think reporters were generally a threat to the nation’s security.

“Indeed, far from compromising national security or law enforcement interests, the act promotes standardizing the rules of the game and allowing reporters to subject government programs and actions to proper scrutiny while ensuring that important information cannot be withheld solely on the grounds of privilege,” Olson said.

Sen. Patrick Leahy (D-Vt.) has been a supporter of a federal shield law from the other side of the aisle. Leahy has said the legislation is “an important first step” in the efforts “to push back against the efforts of the Bush-Cheney administration to bully everyone … who attempts to hold it to account.”

Even with the national security exception, some in the journalism community think a federal law would provide a much-needed standard for media subpoenas.

Paul Boyle, senior vice president for government affairs at the Newspaper Association of America, said that any binding balancing test on the federal level is better than no test at all for most national security reporters.

“Certainly there is concern that the government, in trying to prosecute unauthorized leaks, will go to reporters and force them to reveal sources,” Boyle said. “But right now, you only have the [Department of Justice] guidelines, and they aren’t binding.”

Boyle said a federal shield law would, at the very least, allow national security reporters to know in advance what information was not protected by the law.

“You would know, as a reporter, when you’re receiving information that may not result in protection of your sources if you go to a court,” he said. “The same rules would apply for federal prosecutors and special prosecutors about when it’s appropriate to seek a subpoena to the media.”

Boyle doubted the national security exception would encourage federal officials to seek media subpoenas more often.

“Courts don’t like to waste their time, so any federal prosecutor worth his salt would take those rules seriously and not short-circuit the process,” he said.

Second thoughts on a shield

While many journalists support the federal shield law efforts, there are many who don’t believe that a federal shield law is the answer to protecting national security reporters and their sources.

Mark Feldstein, a former journalist and current director of the journalism program at The George Washington University, said that he fears that national security interests could end up skewing any kind of balancing test, including any test set out in a federal shield law.

Feldstein worried that judges might be too willing to allow interests of national security eclipse a journalist’s interest in confidentiality.

“Judges are supposed to be independent of public opinion … but there’s a limit,” he said. “Judges have been willing in wartime to sanction infringements on liberty that they wouldn’t in peacetime. Survival is considered paramount, even to the judges.”

Walter Pincus, a national security reporter for The Washington Post, was subpoenaed in both the CIA leak investigation and in the case of Wen Ho Lee, a former nuclear physicist who subpoenaed journalists in an attempt to discover who in the government had leaked private information about him.

Pincus, who did not disclose his source either time he was subpoenaed, agreed that a federal shield law is not the answer, but his reasons are different than Feldstein’s. He said that if sources feel more confident that they will be covered by the shield law, they will be more likely to give information that may be offhanded and imprecise.

“I’m nervous about a shield law in general because I think it probably protects sources as much as, if not more than, it protects reporters,” Pincus said. “Sources are more likely to give you slanted, incomplete or inaccurate information believing they’ll be protected.”

Pincus also said that most national security reporters don’t freely publish sensitive information, and that reporters do balancing tests of their own.

“On one hand, [the information has] got to be true,” he said. “We don’t just publish what just one person or one document says. If it’s classified, you have to go to the government and get their view on it so they have a chance to weigh in. And finally, there ought to be a need for a public to know it.”

Nor does Pincus believe there is a crisis in the areas of subpoenas and national security reporting. Those who believe there is, he said, “generally aren’t the people doing the reporting.”

“It hasn’t affected me at all,” Pincus said, “and it hasn’t affected the sources that I deal with.”