A year after New York Times reporter Judith Miller was jailed for refusing to name a source, the Justice Department stubbornly opposes legislation that would protect journalists.
The bill, â€œThe Free Flow of Information Act of 2006,â€ would provide journalists with reportersâ€™ privileges unless the case meets certain criteria or is related to national security.
Deputy Attorney General Paul J. McNulty said the bill has â€œserious flaws,â€ and encourages people to break the law and give classified information to the media.
He questioned its need and said the actual issuance of subpoenas to reporters has been used fewer than 20 times in 15 years.
â€œWe want to find the leaker and thatâ€™s why this authority has been sparingly used,â€ he said at a Judiciary Committee hearing.
â€œItâ€™s last recourse,â€ he added.
Sen. Arlen Specter, R-Pa., Chairman of the Senate Judiciary Committee, said he supported, but was willing to change, the bill in order to satisfy the department.
Specter, who visited Miller in jail, modified the bill from a similar bill introduced last year and sponsored the legislation with senators from both parties. It gives journalists protections in federal courts.
Bill co-sponsor Sen. Charles Schumer, D-NY, said at a Senate Judiciary Committee hearing last week that a free press is as important as a free judiciary system and needs to be protected.
â€œBut not all leaks are OK,â€ Schumer said.
The bill tries to find a balance between the public interest and the need for prosecutors to gain information, he said.
The Senate Judiciary Committee held three hearings with 21 witnesses before last Wednesdayâ€™s hearing, which included McNulty and four legal experts.
Former Solicitor General for the Bush Administration, Theodore B. Olson said itâ€™s natural that the Department of Justice wouldnâ€™t want its interests examined by judges.
He said subpoenaing journalists was â€œoften the weapons of first resort.â€
Olson testified in favor of the bill. Contrary to McNulty, Olson said the bill regarded concerns of national security accurately and fairly. In addition, he said, the bill would end the lack of uniformity in different states and judiciary circuits.
According to Olson, the bill would not expand the Reportersâ€™ Privileges but conform the rules and end the uncertainty and confusion among journalists. Many states and the District of Columbia provide some shield law for journalists, established either as state law, statute or case law based on the First Amendment.
The bill asks federal judges to determine if a U.S. attorney had exhausted other sources, if the journalistsâ€™ material was critical in a criminal investigation or if nondisclosure would be contrary to the public interest, among other things.
Also reporters could be subpoenaed for material relating to national security where information could prevent an act of terrorism.
Senate Judiciary Committee member Sen. Jon Kyl, R-Ariz., also said these tests would be difficult to apply and judges would have to know the same thing as experts in the field.
â€œWhat kind of harm to national security is not significant?â€ he asked.
Lucy Dalglish, Director of the Reporters Committee for Freedom of the Press, disagreed with McNultyâ€™s criticism of the bill and its effects on national security.
Dalglish said the bill offers a well balanced exception for cases that could affect national security.
â€œIn 99.9 percent of the time judges will consider threats to national security and demand the journalist to identify the source,â€ Dalglish said.
According to Dalglish the Department of Justice would like to make the decision to which subpoenas deal with national security itself rather than letting judges decide which sources have to be identified.
â€œThe department just dislikes giving up power,â€ she said.
Former attempts to create a federal shield law have failed because legislators didnâ€™t agree on the definition of who a journalist is and thus who the reportersâ€™ privilege when subpoenaed would cover. The Free Flow of Information Act defines journalists as people who are paid for producing and publishing news for traditional and online media. Dalglish said bloggers are included as long as they produce an original journalistic product, not just disseminate the information of others, and also make a significant portion of their living from it.
The Reporters Committee for Freedom of the Press supports the Free Flow of Information Act even if it takes several years to pass Congress, Daglish said.
The senate bill differs from a version in the House and differences would have to be worked out if it is passed through both houses. The 109th Congress will adjourn Oct. 6 and the legislation may have to be reintroduced next session.