DOJ Continues to Resist Shield Law

Attorney General Michael Mukasey: shield law solution in search of problem; Rep. Mike Pence: response to rising erosion of freedom of press.

The Justice Department continues to have major issues with a shield law being pushed by, among others, Rep. Mike Pence (R-Ind.).

The bill would protect journalists and their sources from overreaching prosecutors, while carving out exceptions for national security, medical and proprietary business information.

In a House Judiciary Committee oversight hearing, Attorney General Michael Mukasey said 10 angels swearing on Bibles would not change the problems he has with the bill. "Would 40 American journalists being held in contempt?" Pence asked Mukasey during questioning.

While Mukasey has called the shield law a solution in search of a problem, Pence called it a response to the rising erosion of freedom of the press.

The White House threatened to veto a shield law.

Pence opined that the Justice Department has not offered any language to help bridge the distance between legislators backing the bill, which include Republicans and Democrats, and the administration, which threatened a veto.

The House already passed a bill giving reporters a qualified privilege, similar to the privilege extended by 49 of the 50 states (Wyoming is the exception). The Senate Judiciary Committee also approved a similar bill on that side of the aisle, which leaves it up to the Senate.

Pence, who motormanned the House version, said the Senate version could come up for a vote in the coming days. That version is co-sponsored by presidential hopefuls Sens. John McCain (R-Ariz.) and Barack Obama (D-Ill.).

In contrast to Mukasey, attorneys general from states across the country pushed for passage of the bill.

Following is a transcript of the exchange between Pence and Mukasey:

Pence: Mr. Attorney General, welcome to the Judiciary Committee.

Mukasey: Thank you.

Pence: Let me take the opportunity to thank you for your exceptional leadership on the recent bipartisan compromise on the Foreign Intelligence Surveillance Act.

Mukasey: Thank you.

Pence: You’ve played an instrumental role in achieving a legislative accomplishment that I believe contributes greatly to our national security.

As you might suspect, since we debated it in one of the nation’s largest newspapers, I want to focus my attention on an issue upon which we disagree: H.R. 2102 –- the Free Flow of Information Act. You’ve commented on it earlier and I want to take the opportunity to raise some issues and pursue a line of questioning, but I do so with great respect.

This legislation was introduced about three years ago by myself and my Democrat colleague, Congressman Rich Boucher. You’ve made your opposition very clear in this testimony today and in other public statements. Your written testimony today says that the bill “would endanger national security by making it nearly impossible for us to investigate leaks of even the most sensitive national security information.”

We’re very aware of that. That kind of a strong pronouncement may be somewhat jarring to a committee that very strongly endorsed this legislation and to a Congress that voted 398-21 on Oct. 16, 2007, to endorse this bill. I want to point out for the record, Mr. Attorney General, that this was supported by the Republican and the Democratic leadership. It was also supported by the ranking members of the Intelligence Committee, the Armed Services Committee and the chairmen of those committees.

I think it was supported precisely because we did endeavor to deal thoughtfully and carefully with precisely the issue that seems to be the focal point of your objection -- namely, concerns about national security.

As you’re aware, in the legislation, in the House version of the bill we only provided a qualified privilege for journalists and made national security the leading reason for which the shield could be pierced. Our legislation permits compelled disclosure to prevent or identify the perpetrator of an act of terrorism against the United States, to prevent significant and specified harm to national security. You made reference to a child-abuse exception not being included in the bill. I would think that would probably be included by inference in the bodily-harm exception in our bill, but I know the Senate includes child abuse in its legislation and I’m open to it. It also allows compelled disclosure of sources in cases that involve the unauthorized disclosure of properly classified information that cause or will cause significant or articulable harm to national security.

I think the inclusion of that very careful structure that does, at a point, call upon our judicial branch to exercise discretion -- balancing our interest in national security with our interest in preserving the liberties upon which this nation was founded -- seems to be a focal point of your concern.

I want to begin by assuring you, General, that as the Congress tried to fulfill its role in addressing both our national security, as well as preserving what we’re trying to secure, that we did so in a way that made national-security interests truly paramount, which, of course, it comes as no surprise that Congress would act in this case. As you know much better than I, being an authority in the law, in 1972 in the Branzburg case, Justice White virtually invited Congress to develop a federal media-shield statute, saying that Congress had the “freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary.”

I guess what my question would be, with a little latitude from the chairman to give you a chance to respond, is: You made the comment today that if 10 angels swearing on the Bible wouldn’t change your mind ...

Mukasey: No, that’s not what I said. I said it wouldn’t change what’s in the bill.

Pence: Wouldn’t change what’s in the bill. Well, let me say, if 10 angels swearing on the Bible wouldn’t change your view of this bill, would 40 American journalists subpoenaed, questioned, or held in contempt do it?

You said, Mr. General, if I may, that this is a “solution in search of a problem” and the Justice Department has argued that it’s approved only 19 source-related subpoenas since 1991. However the number does not include the number of subpoenas issued for non-source information. And also, since 2001, at least 19 additional journalists have been subpoenaed by both federal and special prosecutors and you yourself know that Department of Justice guidelines do not apply to civil litigants or special prosecutors.

I would say, with respect, this is not a solution in search of a problem -- this is a Constitutional, statutory response to a rising erosion of our First Amendment freedom of the press.

Let me make one last point, if I may at the chairman’s indulgence. I must express some disappointment at the fact that in my three years as a working legislator on this issue -- and most of that time you were not in your present role, so I don’t direct this to you -- as you speak about the need for language, I don’t believe the Justice Department has ever offered any language to this committee relative to what would be an acceptable version of a federal media-shield statute.

My question to you would be: Recognizing that, as you said in your testimony, the administration has a “Constitutional responsibility to safeguard classified information” -- and I know you recognize that the administration has a Constitutional responsibility to protect the Constitution and the First Amendment freedom of the press -— can we anticipate, as the Senate may well be taking this bill up in the coming days, may we anticipate a more constructive engagement from the Justice Department in fashioning this legislation in a way that meets the interest of our liberty and our security?

Or should we continue to anticipate as legislators what I would characterize as the strident opposition of the Justice Department to creating the “statutory newsman’s privilege” that the Supreme Court acknowledged could be created 36 years ago?

Mukasey: I guess I’m going to ask for both latitude and longitude from the chair -- say a minute, minute and a half -- to respond to the six minutes or so that I just heard.

First, three points.

First of all, I’m not questioning anybody’s good faith in the drafting of this legislation -- the congressman’s or anybody else -- but I think it’s possible to have a disagreement in good faith.

Pence: So do I.

Mukasey: Let’s focus on two of the points you mentioned. One that was slightly alighted which was a showing that the information properly classified.

That raises a host of problems -- we’re talking about procedurally, substantively -- does that require the government to come in and disclose yet more classified information to show that the classified information was properly classified?

A closely related problem is the showing that the danger exceeds the value of disclosure. Passing for a minute that this a complete imponderable, totally imponderable, that would require the government to come in and basically make a bad promise worse by articulating precisely how threatened disclosure could cause yet more harm. I don’t think that’s a solution.

Now, as I said, I’m willing to talk to anybody who’ll talk to me. But we have in place a system that closely restricts the ability to subpoena reports and the ability to subpoena source information. I think that system has proved adequate -- I’m willing to talk to anybody who thinks it hasn’t. But what I’m not willing to do is to take steps that will essentially do more to protect leakers than it does to protect journalists.

Pence: I thank the General and I thank the chairman for his indulgence.