The Bush Administration Wednesday again asserted its strong opposition to a federal shield law that would protect reporters from having to reveal information about their confidential sources.
A majority of states have such a law and journalists have been pushing for federal protection, arguing that the government is clamping down on more traditional means of gathering information, like FOYA requests, in the name of national security.
At a Senate Judiciary Hearing, the fourth hearing the committee has held on shield legislation, Senator Patrick Leahy said that a half-dozen journalists have been fined or jailed for not revealing sources in the past year, while the bill has been blocked from passage by some Republicans
But Deputy Attorney General Paul McNulty countered that "There is not one shred of evidence supporting the notion that the Department of Justice is out to get the media."
Invoking national security, McNulty argued that the bill would "put a thumb on the scale in favor of the reporter's privilege."
He argued that if the government "cannot confidential source information unless it first proves that the harm to our national security would outweigh the public's interest in maintaining the free flow of leaked information.
"Our national security is too important to be subjected to these standards and burdens."
McNulty also said the fact that states have passed their own shield laws is a different issue, since they are not dealing with larger terrorism-prevention issues.
The bill does include exceptions in the case of information that could prevent and act of terrorism and in extreme cases of disclosure of "properly classified" that has seriously damaged national security and when all other options of identifying the source have been exhausted.
Leahy agreed that the protection is not absolute: "As a former prosecutor myself, I fully agree that criminal wrongdoing must be punished," he said. "In a democracy, the rule of law must bind all of us equally. Good intentions should not excuse overzealous private investigators from stealing Government information illegally in a way that compromises Americans security, any more than they should not excuse overzealous Government investigators from stealing private information illegally in a way that compromises Americans privacy."
Bruce Baird, a partner in law firm Covington & Burling, supports the bill, saying in his testimony that: "A bill with a careful balancing test calibrated for different situations and with appropriate exceptions is a vast improvement over the inconsistent efforts of the federal courts."
Senator Richard Lugar (R-Ind.) reintroduced the federal shield law bill, the Free Flow of Information Act of 2006, in May, with the backing of Judiciary Committee Chairman Arlen Specter (R-Pa.). Lugar initially introduced it in February 2005.
The bill was modified the second time around to add the exceptions in extreme cases
The changes, reflecting issues raised in those hearings, created exceptions to the shield in cases of national security cited above, or when the reporter has been witness to a crime.
Even veteran journalists are not absolute about the privilege.
When asked at a July 2005 hearing by Leahy (D-Vt.) whether the privilege should be absolute, New York Times columnist William Safire said no. “If a national security crisis is about to occur, as citizens, reporters have to help. But journalists and reporters are not the fingers at the end of the long arm of the law.”
Indiana Republican Rep. Mike Pence, a former broadcaster, introduced a similar bill in the House and has been working with Luger on the effort to protect journalists confidential sources by setting national standards for government subpoenas.