NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · Sep. 21, 2006
Shield law’s effect on national security debated
Sep. 21, 2006 · Proponents and detractors of a federal law that would protect journalists from revealing their confidential sources clashed Wednesday about whether judges or the executive branch would be better suited to weigh the interests of national security against the rights of reporters to protect their sources.
In its fourth hearing on the proposed Free Flow of Information Act of 2006, the Senate Judiciary Committee questioned a panel of witnesses that included former Solicitor General Theodore Olson and Deputy Attorney General Paul McNulty, the second-in-command at the Department of Justice.
Although Olson and McNulty both have close ties to the Bush administration — Olson represented President Bush in the U.S. Supreme Court case Bush v. Gore in 2000 — they were on different sides Wednesday.
Olson, who supports the legislation, warned that journalist subpoenas have become “weapons of first resort” in federal investigations, and that reporters are often unable to determine whether their actions fall under the jurisdiction of federal or state law. Forty-nine states and the District of Columbia recognize some form of a reporter’s privilege but no such federal law exists. Olson said that since state shield laws have no federal counterpart, “uncertainty renders provisions in the states ineffective.”
Furthermore, Olson argued that even if no federal shield law is adopted, “there will be judicial analysis of the process anyway” when reporters are served with subpoenas and they move to quash those subpoenas. “Judges do consider national security issues,” Olson said.
Speaking on behalf of the Department of Justice, McNulty referred to the legislation as “a solution in search of a problem” and said that the department’s guidelines already strike the correct balance between the government’s interest and the interests of a free press.
A federal shield law, McNulty said, would only make criminal investigations more difficult and put too much power in the hands of judges. “Courts lack the ability and the knowledge to do a balancing test,” he said.
In response to McNulty’s comments, former prosecutor Bruce Baird said that the bill should be passed primarily because it “does no more than codify the Department of Justice’s existing policy” on issuing subpoenas to reporters. Baird said that “from a defense perspective, the bill is also an improvement” because it would apply the department’s guidelines to all investigations, creating a more uniform procedure.
Committee Chairman Sen. Arlen Specter (R-Pa.), the bill’s co-sponsor, asked McNulty if under a proper application of the Department of Justice’s guidelines, former New York Times reporter Judith Miller would have still gone to jail. McNulty declined to answer.
Steven Clymer, a professor at Cornell Law School, suggested that if a shield law is passed, the Department of Justice should be exempted from its provisions because department officials “already do a good job of policing themselves.”
Clymer called the proposed bill “useless” because “at the moment of truth — when the source seeks an assurance of anonymity — it will not be clear” if any of the exceptions to the federal shield law apply.
The bill was originally introduced in the Senate last year by Sen. Richard Lugar (R-Ind.).
Although the original bill provided for an absolute privilege for confidential sources, the current version, introduced in the Senate in May, offers only a qualified privilege. A similar bill has been introduced in the House.
(The Free Flow of Information Act of 2006) — ES