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A Friendly Question for Elena Kagan

10:30 AM, Jun 25, 2010 • By GABRIEL SCHOENFELD
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Congress is coming close to passing a shield law that would exempt journalists from having to reveal their confidential sources when called to testify before grand juries in cases involving leaks of classified information.

One of the more significant objections to such a law is that it would drag the U.S. government into the messy business of deciding who exactly would enjoy the “testimonial privilege.” Who, in another words, would be officially considered a journalist?

This happens to be one of the few areas where the views of Barack Obama’s nominee for Supreme Court Justice are not a complete mystery.  In a 2005 interview, Elena Kagan complained that a shield law would cover “you, and me, and everybody else in the world . . . once that happens, there’s a real problem for prosecutors seeking to obtain information.”

To her, the status quo, in which journalists can be compelled to reveal their sources on pain of imprisonment (as was New York Times reporter Judith Miller for 85 days in 2005), seems to strike the right balance:

It's hard to think of important prosecutions that have not gone forward because reporters have refused to give information. On the other hand, it's hard to make the argument that freedom of the press has been terribly infringed by the legal regime that's been set up. So it may be that the Supreme Court looks at the status quo and says: "Nothing seems terribly wrong with this. People are ignoring a little bit what we said, but it seems to have results that are not too bad, from either perspective." 

This is sensible stuff. It is also anathema to the Democrats who’ve been pushing hard for passage of the shield-law bill. For minor fireworks, It would be useful to draw her out on this at her confirmation hearings. 

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