FBI Access to Reporter’s Materials—Senate Hearing

The Senate Judiciary Committee is holding hearings today over the Bush Administration’s “use of executive power.”^[1] At issue are the FBI’s “posthumous probe of columnist Jack Anderson” and the question of whether “espionage laws might allow the prosecution of journalists who publish classified information.”^[2] As to the latter point, Committee Chairman Arlen Specter said that “It’s highly doubtful in my mind that [prosecuting journalists] was ever the intent of Congress.”^[3] The chief of staff of the DOJ’s Criminal Division, Matthew Friedrich, however seems committed to the idea of prosecuting journalists, telling the committee that the Espionage Act does not “exempt any class of professionals, including reporters, from their reach.”^[4]

This may have been the only nugget of substance given to the committee, because Mr. Friedrich “refused to comment on the Anderson case,” eliciting exasperation from the Committee.^[5] Senator Patrick Leahy asked “Why in heaven’s name were you sent up here? … Are there any questions you guys are allowed to answer other than your title, time of day?”^[6] Mr. Friedrich responded that the committee was notified of the limitations before the hearing began.^[7] That didn’t stop questions, however, and Sen. Leahy asked “what possible national security interest is served by the FBI rummaging through Mr. Anderson’s files many years after he published articles about these matters,” to which Mr. Friedrich replied with a blanket assertion that if the papers contain classified information, the government has a right to them.^[8]

Responding to Mr. Friedrich’s assertion that no person is outside the Espionage Act, Sen. Specter stated “I believer that’s an invitation to Congress to legislate on the subject. … Clearly, the ball is in our court.”^[9]

Congress may already be moving on this issue, with Senator Richard Lugar introducing the Free Flow of Information Act of 2006^[10] on May 18. The purpose of this Act is “to guarantee the free flow of information to the public through a free and active press while protecting the right to the public to effective law enforcement and the fair administration of justice.”^[11] And while it protects reporters to a degree, it stops short of shielding them from criminal prosecution under the Espionage Act, even thought there is precedent that suggests that reporters are already protected.

In any event, under the proposed legislation, subject to a number of exceptions, Federal courts may not compel a journalist, any person who employs or had an independent contract with a journalist, or a communication service provider, to disclose

• information identifying a source who provided information under a confidentiality promise while the journalist was acting in a professional capacity; or
• any records, communication data, documents, or information that the journalist obtained while conducting research in a professional capacity,

if the requested information is made in a criminal case, and the request is made by an attorney for the United States.^[12] Like so many putatively protective statutes, the exceptions to this privilege are far more numerous and lengthy than the privilege itself.

For example, the information can be compulsorily disclosed only if a court gives the journalist an opportunity to be heard, and the court determines “by clear and convincing evidence,” that

• the attorney for the attorney for the United States has exhausted alternative sources of the information;
• to the extent possible, the subpoena—
  • avoids requiring production of a large volume of unpublished material; and
  • is limited to—
    the verification of published information; and
  • surrounding circumstances relating to the accuracy of the published information;

• the attorney for the United States has given reasonable and timely notice of a demand for documents;
• nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in newsgathering and maintaining a free flow of information to citizens;
• there are reasonable grounds, based on an alternative, independent source, to believe that crime has occurred, and that the information sought is critical to the investigation or prosecution, particularly with respect to directly establishing guilt or innocence; and
• the subpoena is not being used to obtain peripheral, nonessential, or speculative information.^[13]

If the disclosure request is made by a criminal defendant, the same privilege applies,^[14] and there are fewer exceptions. The court may compel disclosure if the journalist is given an opportunity to be heard, and the court determines “by clear and convincing evidence,” that

• the criminal defendant has exhausted alternative sources of the information;
• there are reasonable grounds, based on an alternative source, to believe that the information sought is directly relevant to the question of guilt or innocence or to a fact that is critical to enhancement or mitigation of a sentence;
• the subpoena is not being used to obtain peripheral, nonessential, or speculative information; and
• nondisclosure of the information would be contrary to the public interest, taking into account the public interest in compelling disclosure, the defendant’s interest in a fair trial, and the public interest in newsgathering and in maintaining the free flow of information.^[15]

Furthermore, under this law, there would be no privilege against disclosure of any information obtained as the result of the eyewitness observations of criminal conduct or commitment of criminal conduct by the journalist, including any physical evidence or recording of the observed conduct.^[16] Before compelling this information, however, the court will have to determine that the party seeking to compel disclosure of this information has exhausted reasonable efforts to obtain the information from alternative sources.^[17] There would also be no privilege against disclosure of any information to the extent that such information is “reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.”^[18]

The provision of the Act which threatens to unravel the entire privilege is the “Exception for National Security Interest.” Under the Act, there will be no privilege if the court, after giving the journalist a chance to be heard, determines by “clear and convincing evidence” that

• disclosure of information identifying the source is necessary to prevent an act of terrorism or to prevent significant and actual harm to the national security, and the value of the information that would be disclosed clearly outweighs the harm to the public interest and the free flow of information that would be caused by compelling the disclosure; or
• in a criminal investigation or prosecution of an unauthorized disclosure of properly classified Government information by an employee of the United States, such unauthorized disclosure has seriously damaged the national security, alternative sources of the information identifying the source have been exhausted, and the harm caused by the unauthorized disclosure of properly classified Government information clearly outweighs the value to the public of the disclosed information.^[19]

And lest anyone be concerned, nothing in the Act should be construed to limit any authority of the Government under FISA.^[20]

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[1] Laurie Kellman, Senators Seek Answers in Probe of Reporter, AP (via Yahoo!), Jun. 6, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Senate Panel Wants Answers About Probe of Columnist Jack Anderson, AP (via FoxNews.com), Jun. 6, 2006.
[10] S. 2831, 109th Cong. (2006).
[11] Id. § 2.
[12] Id. § 4(a).
[13] Id. § 4(b).
[14] Id. § 5(a).
[15] Id. § 5(b).
[16] Id. § 7.
[17] Id.
[18] Id. § 8.
[19] Id. § 9(a).
[20] Id. § 9(b).