NEWS MEDIA UPDATE · WASHINGTON, D.C. · Copyright/Intellectual Property · June 22, 2006
Justice reiterates opposition to federal shield bill
June 22, 2006 · The Department of Justice sent a nine-page letter to the Senate Judiciary Committee chairman publicly opposing for the second time in eight months the proposed reporter’s privilege bill currently before the committee.
“No one ever expected the department to do anything but oppose,” said Kurt Wimmer, a media attorney at Covington & Burling who has provided advice on various proposed shield bills. “But the really crucial thing about this letter, this is the important element that is between the lines, the letter does not contain a veto threat. The fact that the letter doesn’t say, ‘We will recommend that the president veto this legislation,’ is truly significant.”
The “Free Flow of Information Act of 2006,” S. 2831, would create a privilege allowing journalists, in certain situations, to protect themselves in federal court from the compelled disclosure of the identity of confidential sources.
Assistant Attorney General William Moschella said in the letter sent Tuesday to Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) that in the past 14 years, the Department of Justice has used its subpoena power to “obtain source information” only 12 times, a number cited by U.S. Attorney Chuck Rosenberg in his October testimony before the Senate Judiciary Committee.
That number is contradicted by the Justice Department’s own numbers. In a November 2001 letter from Assistant Attorney General Daniel Bryant to Sen. Charles Grassley (R-Iowa), Bryant wrote that between 1991 and 2001, the Justice Department issued 88 subpoenas to the media, 17 of which sought the identity of confidential sources.
Since Rosenberg testified in October, there have been at least two subpoenas from U.S. attorneys seeking the identity of confidential sources from journalists. In May, federal prosecutors subpoenaed Lance Williams and Mark Fainaru-Wada, the San Francisco Chronicle reporters who reported about the federal grand jury investigation of Bay Area Laboratory Cooperative (BALCO).
“This notion that they’ve only issued 12 subpoenas — that’s just false,” Wimmer said. “In addition, some of the subpoenas — the federal grand jury ones — are secret, so you can’t say if there even was a subpoena. We’ve had a meeting with the people who process requests for subpoenas to the media under the [Justice Department’s] guidelines, and unless there are rogue U.S. attorneys who are ignoring the guidelines, they have central information on how many subpoenas are being issued, and the numbers they give just cannot be right.”
Moschella also wrote that the Justice Department has constitutional concerns about creating a privilege when the U.S. Supreme Court in 1972’s Branzburg v. Hayes declined to find a privilege. But the letter ignores the fact that in Branzburg, the Court specifically invited Congress to create a privilege.
The Justice Department also contends that the definition of a “journalist”does “not exclude the agents and media outlets of hostile foreign entities.” Under their reading of the bill, reporters for Al-Manar TV, the media outlet of the terrorist organization Hezbollah and named a “specially designated global terrorist” by the State Department, would be protected from revealing their confidential sources.
Such a reading of the bill assumes that federal courts cannot tell a professional journalist from a terrorist, Wimmer said. The definition of a journalist in the shield bill also would prevent terrorist groups such as Al-Manar from being labeled as journalists, according to Wimmer.
The Justice Department also objected to a section of the bill which would require the government to prove by “clear and convincing evidence” that compelled disclosure of a confidential source is necessary to prevent harm to national security and that disclosure clearly outweighs the public interest in the free flow of information. “The conditions this provision requires the Government to satisfy in order to obtain information critical to national security place impermissible burdens on the constitutional responsibilities of the President and the Executive branch,” Moschella wrote.
Wimmer contends that the argument seems to assert that presidential power can never be limited by statute, which would make such laws as even the USA PATRIOT Act unconstitutional.
The department also expressed concerns that the bill might weaken a criminal defendant’s fair trial rights under the Sixth Amendment and found problems with each of the bill’s other major provisions.
Despite the department’s harsh criticism of the bill, Wimmer hopes that the letter will not end the debate.
“It really is a balancing bill now, so we’re hoping that the department’s letter will not stop too many senators from giving up on the bill,” he said.
In addition to Specter, the bill’s other sponsors are Sens. Richard Lugar (R-Ind.), Christopher Dodd (D-Conn.), Lindsey Graham (R-S.C.) and Charles Schumer (D-N.Y).
(S. 2831 (Free Flow of Information Act of 2006)) — CM