A License to Leak
The unhappy consequences of a shield law for journalists.
Oct 22, 2007, Vol. 13, No. 06 • By GABRIEL SCHOENFELD
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.
But the U.S. government already has a very sorry record of keeping the secrets it has been assigned by the American people to protect. In recent years, the mass media, led by the New York Times, have ferreted out highly sensitive information from disgruntled bureaucrats and deployed it on news pages and on television screens to compromise operational counterterrorism programs like the CIA-Treasury effort to track al Qaeda finances through the SWIFT banking consortium, or the National Security Agency's program to intercept the communications of al Qaeda members with persons in the United States. Given the nature of the war we are in, these disclosures and the damage they inflict are the functional equivalent of reporting on the movement of ships in the midst of a naval battle.
It is notable that even without a shield statute on the books, stories about these highly classified intelligence programs, and many other equally harmful revelations based upon secret data, have been coming out at an accelerating pace. It would seem that more than a handful of officials with their own private agendas are not exactly afraid to break their oaths of secrecy and violate the law even if the Justice Department retains the right to threaten reporters with contempt citations and imprisonment to learn their identities. A major rationale for the passage of the shield law--that, in the absence of one, the public will be ill-informed--would seem to be without foundation.
Proponents of a shield have a ready rejoinder to that argument. Without a reporter's privilege, they say, we will never know about the many important stories that will not see the light of print. About this they are unequivocally right, and that is precisely the trouble with what they are proposing. For if the government already has difficulty keeping leaks from springing, a shield law would greatly exacerbate the plumbing problem, turning a steady drip into a flood. For all intents and purposes, the proposed law would immunize leakers from prosecution by making it utterly impossible to uncover and apprehend them.
It is true, of course, that both the House and Senate versions of the bill have an exception pertaining to leaks that bear on national security. In the only slightly less irresponsible Senate version of the bill, the shield offered to newsmen would fall away if a federal court found a "preponderance of evidence" that a reporter could provide information that would either prevent "a specific case of terrorism against the United States" or avert "significant harm to national security that would outweigh the public interest in newsgathering and maintaining a free flow of information to citizens."
A moment's reflection is all that is required to grasp that this exception is almost meaningless. The U.S. government is not the only body in the world that strives to keep secrets. Indeed, some of our adversaries are far more secretive than we are. Given this reality, by what method, and on the basis of what information, would the courts go about assessing whether a particular leak had caused "significant harm" that would "outweigh the public interest in newsgathering"?
The answer is that, until we suffer significant harm itself--when it will be well past time to do anything about it--there will be no method. The facts available to a court for rendering such a judgment would almost always be elusive, or highly classified themselves--and in the absence of a preponderance of evidence pointing to significant harm, the reporters would be permitted to remain silent about their sources and their leaker-accomplices in government could continue to endanger national security while protecting their careers.
Nor is that the end of the problem with the proposed shield law. For in seeking to protect journalists, the bill would raise a question that is harder to solve than any problem ever confronted by Albert Einstein: Who exactly is a journalist?
If the definition is drawn too broadly, the opportunities for mischief become legion. For one thing, every foreign espionage service would rush to launch covertly operated publications--imagine, in the case of the Communist Chinese, the Red Star over Washington Weekly--to gain journalistic privileges for their agents and exemption from the obligation to testify in courts of law. Domestic political extremists and organized criminals would do the same.
And if the definition is drawn too narrowly, so as to encompass only salaried professional journalists, a very different and even more disquieting set of problems arises. In the Supreme Court's landmark 1972 Branzburg decision, Justice Byron White memorably affirmed that, in our political tradition, "liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods." Freedom of the press, White continued, is a "fundamental personal right" that is not confined to newspapers and periodicals or any other instrument of the press.
The preservation of this fundamental personal right is ultimately what is at stake in the debate over the shield law. If such legislation were to be enacted in the name of freedom of the press, narrowly defined, it would be a supreme irony. For a basic component of freedom of the press--the right of all Americans to be gatherers and purveyors of information--would then be well on its way to evisceration.
The journalists who are pushing for the shield law are thus engaged in a monumental act of impudence. They have already wrested from the American people, against their will as expressed in long-settled law and against their most central interest in self-preservation, the right to determine what remains secret in wartime. They are now asking the American people officially to recognize and ratify their position as an elite body of opinion shapers, so exalted in status as to be exempt from an ancient principle underpinning our system of jurisprudence--the public's right to hear every man's evidence when crimes are committed against the United States.
Gabriel Schoenfeld, senior editor of Commentary, contributes regularly to the blog at commentarymagazine.com.