Story by Max Ringsgwandl and Nikki Schwab
A year after The New York Times reporter Judith Miller was jailed for refusing to name a source, the Department of Justice opposes legislation that would protect journalists.
The Free Flow of Information Act of 2006 would provide journalists with 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 flawsâ€ that encourage people to break the law and give classified information to the media.
He questioned a need for the law and said the issuance of subpoenas to reporters has been used less 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 Senate Judiciary Committee hearing. â€œItâ€™s last recourse.â€
Committee chairman Arlen Specter, R-Pa., said he supported the bill but was willing to change it to satisfy the department.
Specter, who visited Miller in jail, modified the bill from a similar one 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 the 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 committee held three hearings with 21 witnesses before last Wednesdayâ€™s hearing, which included McNulty and four legal experts.
Theodore B. Olson, former solicitor general for the Bush administration, said itâ€™s natural that the justice department wouldnâ€™t want its interests examined by judges.
He said subpoenaing journalists is often one of â€œthe weapons of first resort.â€
Olson testified in favor of the bill. Contrary to McNulty, Olson said the bill represented 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 reportersâ€™ privileges but solidify the rules and end the uncertainty and confusion among journalists. Many states and Washington, D.C., provide some journalist shield laws that are 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.
Reporters also could be subpoenaed for national security information that could prevent an act of terrorism.
Committee member Sen. Jon Kyl, R-Ariz., said the 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.
Story by Max Ringswandl and Nikki Scwab
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 justice department would like to make the decision concerning subpoenas that deal with national security 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 a journalist or what 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 legislation even if it takes several years to pass Congress, Daglish said.
The Senate bill differs from the House version, and differences have to be worked out before it passes both legislative branches. Congress will adjourn Sept. 29, and the legislation may have to be reintroduced next session.