The Magazine

A License to Leak

The unhappy consequences of a shield law for journalists.

Oct 22, 2007, Vol. 13, No. 06 • By GABRIEL SCHOENFELD
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Drip, drip, drip--secrets are leaking out of our government at the pace of Chinese water torture. In the most recent case, bureaucrats somewhere in the U.S. intelligence apparatus indirectly disclosed the existence of a unique operation, privately run, that was tapping into al Qaeda's web servers and, among other things, had obtained an advance copy of the most recent video of Osama bin Laden. In the wake of the revelation, al Qaeda immediately shut down its website network. The damage to our national security--the end of American access to one of the few windows into the workings of our most lethal foe--appears to be significant.

Who leaked the video to the press? The culprit or culprits in the bureaucracy are not talking, and neither are the journalists who received it from them and blared its existence to al Qaeda and the world. Because no officially classified information was evidently disclosed, there does not appear to have been any crime committed. It seems to be just a case of staggering misjudgment and/or pernicious self-promotion.

But speaking hypothetically, what if the information had been classified? Could anything have been done about it? Probably not. Leak investigations are notoriously unproductive; most generate nothing more than immense collections of legal files. But if a particular leak is deemed grave enough, the Justice Department does have one effective instrument at its disposal: the right to track down the leaker by subpoenaing journalists and compelling them to disgorge the identities of their confidential sources. That is precisely what the special prosecutor Patrick Fitzgerald did in the Valerie Plame imbroglio, demanding of New York Times reporter Judith Miller that she spill the beans. When she failed to comply, he asked a court to hold her in contempt, which it did. She then sat in jail for 12 weeks until she had second thoughts and named Scooter Libby as her source.

Journalists profess to be traumatized by the very idea of such proceedings, which not only can end in their incarceration but also, they aver, will dry up the flow of information on which journalism depends. Confidential sources, they say, are the lifeblood of their profession. And if the promise of confidentiality can be pierced by prosecutors, many sources will decline to talk, our constitutionally guaranteed freedom of the press will be enfeebled, and the American public will be deprived of its right to know.

To protect this right, a battalion of newsmen, media conglomerates, and professional associations, and the blue-chip lawyers who represent them all, have been pushing for years for the passage of a "shield law" that would create a "reporter's privilege"--akin to the attorney-client and the priest-penitent privilege--which would exempt journalists from having to reveal their sources to grand juries or in other federal court proceedings. With the Democrats in control of Congress, the prospects for passage of such a bill are now better than they have been for a generation.

Already, committees in both houses of Congress have reported out shield-law bills for consideration by their parent bodies. The bills have drawn a surprising degree of bipartisan support, passing the Senate Judiciary Committee, for instance, by a margin of 15 to 2.

But a shield law is a deeply flawed idea, and the implications of its passage are frightening to contemplate. For along with the public's right to know there is also something rarely spoken about, let alone defended: namely, the public's right not to know, which the shield law would undercut in a swoop.

What is our right not to know? The answer is simple, and coterminous with our right to protect ourselves from foreign dangers. Even during peacetime our national security depends heavily on a system of secrecy established according to laws enacted by Congress. In other words, when it comes to certain sensitive subjects in the realm of security, the American people, acting through their elected representatives, have voluntarily chosen to keep themselves uninformed about what the government is doing in their name.

Today, this choice not to know is much more important than in quiet times. The United States is at war. And we are not only at war, we are engaged in a particular kind of war, an intelligence war, in which secrets--in particular, our secret capabilities for finding and tracking our adversaries--are vital in determining whether some of us, civilians and military alike, will live or die.