Cabinet Officials Cite Concerns About Senate Version of Reporter's Shield Law

Bush Cabinet members with national security responsibilities are sending letters to Senate leaders about the Free Flow of Information Act. The bill would protect a reporter's source unless a federal judge, "by a preponderance of the evidence," ruled that the identity sought is "essential to the resolution of the matter." In a criminal case, the judge must determine that "there are reasonable grounds to believe that a crime has occurred." In their letter, Attorney General Michael B. Mukasey and Director of National Intelligence Mike McConnell point out that the new bill would require proving that a document is "properly classified," raising the prospect that "every leak investigation" would become "a mini-trial over the propriety of the government's classification system." It would also require proving that the leaker "had authorized access" to the classified information, when the purpose of the subpoena to the reporter is to find out who that person is, they said. They also say proving that the information the leaker disclosed caused "harm to national security" would "lead to time-consuming litigation," which itself could require exposing other classified secrets. Finally, they note that the terrorism exception is prospective only and would not help authorities identify sources in terrorist acts that had occurred. Defense Secretary Robert M. Gates argues that the broad class of people given legal protection as journalists in the bill "would have the unintended consequence of encouraging unauthorized disclosures" of classified information by leakers who believe they are protected. Gates also wrote that it would increase the nation's "vulnerability to adversaries' counterintelligence efforts to recruit" journalists. Energy Secretary Samuel W. Bodman, whose agency runs the U.S. nuclear weapons complex, joined Gates in saying the bill could encourage "dissemination of classified information by giving leakers a formidable shield behind which they can hide." Michael Chertoff, secretary of Homeland Security, stressed in his letter the need to carry out quickly probes of terrorist activities and other threats. But he said the "evidentiary burdens to obtaining critical information from anyone who can claim to be a journalist . . . ensure that criminals have opportunities to avoid detection, continue their potentially dangerous operations, and further obfuscate their illegal activities." Whether these concerns are all valid, they deserve to be weighed publicly. At the minimum, they have led Mukasey and McConnell to tell the Senate leadership that if the present Senate measure were sent to the president, "his senior advisers would recommend that he veto the bill."
http://www.washingtonpost.com/wp-dyn/content/article/2008/04/20/AR200804...
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Protecting a Basic Freedom
[SOURCE: New York Times, AUTHOR: Editorial staff]
[Commentary] Contrary to the administration’s claims, enacting a federal shield law would not harm national security. What it would do is allow the robust reporting that is essential for both the country’s safety and its freedom.
http://www.nytimes.com/2008/04/21/opinion/21mon3.html?ref=todayspaper
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