Bush Administration, Senate move to axe reporter shield law

Brian Beutler

The Bush Administration is seeking to undermine legislation that, if passed, would protect journalists and anonymous whistleblowers, RAW STORY has learned.

Members of the Senate Judiciary Committee will listen to testimony today regarding a reporter shield law called the Free Flow of Information Act.

“I think they want no law at all,” said one senior staffer familiar with the proceedings. “They’re sending [Deputy Attorney General Paul] McNulty up to hammer it.”

The bill, cosponsored by a bipartisan coalition of nine moderate senators, is a successor to a similar piece of legislation that appeared before the same committee last year.

Last year’s bill never made it past committee hearings, despite having a greater number of cosponsors–including Senators Feingold (D-WI), Kerry (D-MA), and Obama (D-IL)–who have not supported the current version.

Both bills would make it more difficult for prosecutors to force reporters to name sources or to yield information that would result in their sources being identified.

However, the current bill’s national security exception has been broadened. It abandons the requirement, enshrined in last year’s bill, that the threat to national security be imminent before the Attorney General can compel any disclosures.

The 2006 bill has also been amended with a reminder clause stating, “Nothing in this Act shall be construed to limit any authority of the Government under the Foreign Intelligence Surveillance Act.”

Sources in both parties characterize the bill’s evolution as a negotiation between moderates, who seek to enshrine certain protections for members of the media, and the White House and Justice Department, both of which seek to minimize legal obstacles when conducting investigations.

“They raised concerns,” said another senior judiciary staffer yesterday. “We addressed some of them, and we’re prepared to address more.”

Deputy Attorney General McNulty’s opposition to the bill was voiced early this morning in testimony before the committee.

“Our nation is engaged in a war on terror; our prevention efforts must be tailored to the nature of the enemy we face,” McNulty insisted. “Secrecy and surprise are cornerstones of our enemy’s approach. Our response must follow suit.”

He went on to say that, “the consequences of leaking are extraordinarily grave,” and therefore, “the Department of Justice firmly opposes the bill.”

This is the third time members of the Justice Department have objected to the legislation. The previous bill was roundly criticized last year by U.S. Attorney Chuck Rosenberg on their behalf. He said such a law “would create serious impediments to the Department’s ability to effectively enforce the law, fight terrorism, and protect the national security.”

However, many see the situation differently. They are concerned that creating bipartisan legislation is not possible with a White House that prizes secrecy and executive privilege to this extent.

In a statement released to RAW STORY, Senator Patrick Leahy (D-VT), ranking member of the Judiciary Committee, blamed the stall on the president and “a minority of the majority of this Committee,” and criticized the president for his “inability” to appreciate the value of whistleblowers to law enforcement and to the broader public.

Likewise, civil libertarians are concerned that their position in this debate is not being considered. In a letter to the committee, the ACLU noted, “the national security exception could be misused in such a way as to nullify any protection afforded a reporter’s source.”

The letter went on to say, though, that “If the Free Flow of Information Act is amended to narrow the national security exception, and adequately protect defendants’ rights, and no problematic amendments are adopted, the ACLU would support this legislation.”