ABC News President David Westin said Wednesday that his news operation has been chilled, or at least had to adjust the cost-benefit analysis of its stories, by the Justice Department's pursuit of journalists as witnesses in grand jury investigations.
When asked by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) Wednesday whether ABC had felt that chill, Westin suggested DOJ's "high profile" pursuit has required adjusting of the aim of ABC journalists, at least on some stories.
While he said the biggest stories must still be reported, regardless of the threat, for others, "we have to ask ourselves what the situation we are leading our reporters and editors and our corporation into, and is the story worth that? We have to take that into account in what we pursue and how we pursue it."
That testimony came in the Senate Judiciary Committee's second hearing on bill S. 340, introduced by Indiana Republican Sen. Richard Lugar, which would establish a protection for reporters from federal subpoenas, with exceptions in the case of imminent threat to national security. A similar bill is being spearheaded in the House by another Indiana Republican, Rep. Mike Pence.
Westin, an attorney and former Supreme Court clerk, said that he was not there to attack the Justice Department, but to argue that there needs to be a rule that says prosecutors and others can have access only to the information they truly need and can get in no other way. He said that it should be up to the courts, not the unfettered desertion of DOJ, to assess that need for access.
The committee held its first hearing in July, but the absence of a Justice Department witness helped prompt the second panel, as well as the presence this time of New York Times reporter Judith Miller, who had been in jail for a week protecting a source when the last hearing was conducted July 20.
Miller, who Specter said he had visited in jail, said that the law protecting confidential sources was even more vital now that so much more information is being classified by the government and more reporters are getting subpoenaed. Saying more than two dozen have been served in the past two years, Miller said that the Alexandria detention center where she was held for 85 days "may have to open a new wing entirely for reporters."
Specter also said the committee was continuing to seek information on why Miller had been jailed.
One of the problems former D.C. U.S. Attorney Joseph DiGenova has with the current system is that those seeking to quash subpoenas do not have sufficient access to information on why they are being subpoenaed, saying the same is true when lawyers were subpoenaed.
DiGenova argued against an absolute privilege, which neither House nor Senate bill now contains, but also said that the current Justice guidelines restricting subpoenas should be made the law of the land, not just the policy of that department, and that the subjects of a subpoena should have access to more of the evidence being used to "pierce a vital privilege."
The Justice Department showed up this time, and as expected came out strongly against the law.
U.S. Attorney Chuck Rosenberg said the First Amendment is "manifestly not under assault from the Department of Justice," and that DOJ's responsibility for protecting vital secrets, national security, and public safety requires the flexible, case-by-case approach that has served for the past three-plus decades.
Pointing out that DOJ had only issued a dozen subpoenas for confidential info in the past dozen years, he asked what problem needed fixing, saying DOJ was very careful and only sought that information when it was absolutely necessary.
The bill, he says, would replace that with an inflexible standard with only the narrow exception for meeting an imminent harm to national security test, but no exception for imminent harm to individuals--information on the whereabouts of a kidnapping victim, for instance. Having to go through layers or court proceedings would hinder the department at times when speed is of the essence.
Texas Republican Sen. John Cornyn raised the thorny issue of who the privilege would cover, lumping Al-Jazeera and bloggers together as entities possibly covered by the law "that don't observe the same professional ethics and review by editors for acurary and responsibility." Rosenberg agreed that was problematic.
"We strongly oppose this bill as it applies to our work," Rosenberg concluded.