The New York Times
By Bill Keller
“We cannot allow our government to arbitrarily abolish the First Amendment in the name of ‘state secrets,’ ”
Thanks in part to the outrage over two aggressive government leak hunts — the A.P. case and the electronic tracking of a Fox News correspondent — there is now a flicker of hope that
A federal shield law has been a goal of news organizations for decades. Such legislation has passed the House twice with large bipartisan majorities, and in 2009 a version won the approval of the Senate Judiciary Committee — only to stall after the hemorrhage of classified documents from the anti-secrecy group WikiLeaks.
A lot of people I respect, including some eminent journalists, have questioned the idea that Congress should exempt reporters from the civic duty to give evidence. Anthony Lewis, the Times correspondent, columnist and self-taught legal scholar who died this year, worried six years ago that giving reporters an inviolable right to protect sources might make it hard for someone who had been ruined by false allegations to find his accuser and get justice. Walter Pincus, the veteran Washington Post investigator who has himself been a target of leak-hunting subpoenas, argues that a shield law would make the press too beholden to Congress and subject to a worrisome degree of government regulation. He insists that the right to protect sources already exists in law. (The Supreme Court, in its 1972 ruling in Branzburg v. Hayes, failed to find such a right in the Constitution, but a few federal judges have found it in common law. The fact that every state in the country except Wyoming offers a measure of protection for confidential sources has persuaded some judges that this is society’s will, even if Congress has not yet said so.)
Pincus and other critics complain that a sanctimonious press is quick to wrap itself in the First Amendment but often slow to acknowledge that some secrets are worth keeping. A closer look at the two cases currently fueling media indignation suggests they have a point.
In the first case, The Associated Press disclosed last year that the C.I.A. had thwarted a terrorist plot to blow up an airliner. The initial scoop uncorked a gusher of sensitive details as other news organizations raced to advance the story and the Obama administration tried to supply some self-serving context. So we now know this: A C.I.A.-Saudi-British operation planted a mole inside the Qaeda affiliate in Yemen. The agent volunteered to blow up an airliner using a new bomb designed to get past airport security. Instead, he turned over the device to his handlers.
At the C.I.A.’s request, The A.P. held its story for several days — apparently so the agency could use information from the infiltrator to locate and kill a top Qaeda official — and then the story spilled into many headlines. It’s hard to imagine the mole, having failed to blow up an airliner, was ever going to be welcomed back into the bosom of Al Qaeda. But the administration argues that the disclosure of his role at least put the terrorists on high alert and made future infiltration more difficult. In its hunt for the leakers, the F.B.I. secretly studied two-months’ worth of calls on phones used by 100 A.P. reporters.
In the second case, James Rosen of Fox News reported in 2009 that, according to the C.I.A.’s sources in Pyongyang, North Korea was contemplating another nuclear test. Not earthshaking news, but the feds feared this story would tip off North Korean leaders that we have the ability to intercept their conversations. So they seized Rosen’s e-mail records and traced the movements of his electronic State Department visitor’s badge to zero in on his source. The government kept this surveillance a secret on the grounds that Rosen was “an aider, abettor and/or co-conspirator” in violation of the Espionage Act. Rosen was not indicted, but the language revealed an ominous mind-set.
I think the Justice Department had ample reason to find these particular leaks troubling. At the very least, both put enemies on guard. In neither case was the leak hunt launched to silence a whistle-blower or hide official malfeasance; on the contrary, both leaks revealed intelligence agencies doing their jobs. And in pursuing the leakers, the Justice Department was doing its.
The question is whether the leaks justified such an extensive invasion of journalists’ activities, with no advance notice and no independent oversight. That is exactly the kind of dispute a shield law is meant to resolve. Before compelling a journalist to testify or surrender records, the government would be obliged to meet the journalist’s lawyers in front of a judge. The prosecutors would have to make a good case that they had no other way to find the leak, that they would not cast their net so widely as to intrude on other reporting operations, and that identifying the leak was more important than the public value of the story. It’s not clear whether a shield law would have thwarted the government’s surveillance of The A.P. or Rosen. But it would have taken away the prosecutors’ power to decide unilaterally.
“Judges are not always wise,” Anthony Lewis wrote in 2007, endorsing the kind of compromise contained in
Sadly, the current Senate version of the shield law, which has been laboriously massaged to accommodate both media companies and secrecy hawks, has an intolerably large loophole for cases in which the government claims national security is at risk. That would leave the government with a free hand not only in the A.P. and Rosen cases, but in genuinely notorious revelations such as warrantless eavesdropping, secret prisons and torture, which would not have been disclosed without confidential sources.
To be sure, nothing Congress is likely to pass will satisfy First Amendment absolutists. Some judges will side with the government reflexively. We may occasionally see a principled journalist going to jail rather than obey a court order to divulge a source.
But I would settle for a law like