The Shield

"The media plays a critical role in our society," Deputy Attorney General James Comey told the Senate Judiciary Committee last week. "The freedom of the press is a hallowed American right, and in a time when news can be sent around the world almost instantaneously, it is as important as ever that the American people be kept informed of what is happening overseas, in Washington, and in their hometowns."

So why did Comey then argue against passage of a proposed law that would require the federal government to join 49 states and the District of Columbia in 'shielding' reporters to protect them from having to reveal confidential sources?

National security, of course.

The government's "ability to effectively enforce the law and fight terrorism" will be seriously impeded if the law is passed, he says. Such a bill "is bad public policy" and "would place an unreasonable burden upon the Government" in connection with sensitive grand jury investigations.

No matter that dozens of elected officials -- ranging from conservative Republicans Rep. Mike Pence and Sen. Pete Domenici to liberal Democrats Sen. Russell Feingold and Rep. Rahm Emmanuel -- and disparate companies ranging from ABC to Ziff Davis all support the "Free Flow of Information Act." Hell, even Time editor-in-chief/media turncoat Norman Pearlstine -- who recently caved in to prosecutorial pressure and outed reporter Matt Cooper's source in the Valerie Plame/CIA/WMD investigation -- argued in favor of the bill.

But not Comey & Co ...

Instead, President Bush's Department of Justice announced its fervid opposition to the proposed legislation, which would protect journalists from having to divulge sources in most instances, on the grounds that we must combat terrorism. Comey claims that certain definitions in the proposed legislation are ambiguous and "cover criminal or terrorist organizations that also have media operations, including many foreign terrorist organizations, such as al Qaeda (which, from its founding, maintained a media office that published a newsletter)."

Does Comey actually believe that al Qaeda will claim to be a legitimate media organization and send an attorney to appear in federal court to offer a legal challenge under the shield law? Apparently so. "Indeed, the inherent difficulty of appropriately defining a 'covered person' in a world in which the very definition of 'media' is constantly evolving, suggests yet another fundamental weakness in the bill," his argument continues. "What could be shielded here is not so much the traditional media -- which already is protected adequately by existing Justice Department guidelines -- as criminal activity deliberately or fortuitously using means or facilities in the course of the offenses that would cause the perpetrators to fall within the definition of the media under the bill."

Passage of the proposed law would merely bring federal rules into line with similar laws in 31 states and the District of Columbia. (Courts in eighteen other states have established protections for reporters.) But Comey contends that the proposed federal shield law can't be compared with the state laws already in place, because "None of the states deals with classified information in the way that the Federal government does, and no state is tasked with defending the nation as a whole or conducting international diplomacy."

The Justice Department national security objection is puzzlingly out of date, however, because the shield law has already been revised to address valid national security concerns. Eminently reasonable amendments added recently to the proposed bill would "prevent imminent and actual harm to the national security" by forcing disclosure of confidential sources in case of an actual and urgent threat. Although Comey's statement opposing the legislation was made public after the bill was revised, it remains "the most recent position taken by the Department of Justice," according to DOJ Senior Counsel John Nowacki.

By significantly limiting the circumstances in which prosecutors could compel testimony from reporters, the proposed federal legislation could of course offer journalists more protection -- but not total immunity -- from the hard choices that Time's Matt Cooper and imprisoned New York Times journalist Judith Miller recently faced.

Patrick Fitzgerald, the prosecutor in the Plame case, relied upon the lack of a federal law to force Miller and Cooper either to disclose confidential sources or be held in contempt. Following Time's corporate capitulation, Cooper disclosed. Supported by the Times, Miller didn't. As a result she is now imprisoned (albeit for one of the few journalistic crimes she hasn't committed ... )

As federal rules now have it, prosecutors Fitzgerald, Comey, et al. get to play judge and jury as well, deciding whether and to what extent to force reporters to reveal the identify of a confidential source. The proposed law would transfer the power to make those sorts of decisions to judges, and require prosecutors to supply them with "clear and convincing" evidence that a reporter's confidential source must be revealed.

But the Justice Department argues that a federal shield law would depart "dramatically" from existing regulations by requiring "public mini-trials whenever the Department seeks relevant information in a criminal grand jury investigation or to justify a trial subpoena." In addition, Comey said, "In the absence of a credible demonstration that the subpoena power is being abused by the Department in this area, such that sources have dried up, with the result that journalists are unable to do effective investigative reporting, there is no need for a legislative fix."

The Deputy Attorney General apparently missed the portion of Norman Pearlstine's testimony where he admitted that several confidential sources already have told his Time reporters they won't talk to that loose-lipped publication any more. (Time reporters had shown him mail "from valuable sources who insisted that they no longer trusted the magazine.") Meanwhile, the Cleveland Plain Dealer, fearing the possibility of subpoenas, recently withheld publication of two investigative reports based on leaked documents. "Jail is too high a price to pay," editor Doug Clifford explained.

Balancing competing rights is at the heart of the American system of justice. When it comes to a reporter's privilege, the system is clearly unbalanced now against a strong free press. Instead of opposing the free flow of information, the Department of Justice should be working with Congress to protect journalists and to make prosecutors justify their actions more than they do now when it comes to reporters and their sources. As the retired Times columnist William Safire testified, "We are not seeking an absolute privilege."

Just a shield.

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