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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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.