Leaks of Classified Information—Shield Law Stalls

Ever since New York Times reporter Judith Miller went to jail for refusing to name her sources, Congress has toyed with the idea of enacting a federal shield law, which would give some protection to reporters who wish to keep their confidential sources anonymous.^[1] And right about now, the two reporters in San Francisco who leaked Grand Jury testimony about Barry Bonds—Lance Williams and Mark Fainaru-Wada—would presumably appreciate a shield law after US District Judge Jeffrey White issued an “order to jail them until they agree to testify about who leaked.”^[2]

It doesn’t look like such a law is in the cards however. The Senate Judiciary Committee “has postponed consideration of a federal shield law for journalists after hearing strong new objections to the measure from the Justice Department.”^[3] One of the points which earned the DOJ’s ire “is a provision that would require the Justice Department, to obtain a journalist’s testimony about sources of a leak of national security information, to convince a judge that the disclosure caused more harm to the government than benefit to the public.”^[4] In other words, the possible dangers to national security would be weighed against the public’s right to know; currently “no such balancing test is administered.”^[5]

One of the opponents of the bill, Senator John Kyl, wondered “how a court would determine whether the government had met the burden of showing damage to national security outweighed public interest.”^[6] Theodore B. Olson, solicitor general early in Bush’s administration, however, said that Congress and others “’do not recoil from judicial oversight of these types of decisions’ when judges issue secret warrants” under FISA.^[7]

Even if the measure sputters out in the Senate, it may be revived in the House. Indiana Representative Mike Pence “has made passing a federal media shield law personal crusade.”^[8] Currently, 32 States and the District of Columbia have media shield laws, and—according to the Indiana Republican—until Congress ensures that reporters will be protected, “the freedom of the press and public’s right to know will risk the same fate of these brave journalists” who have been imprisoned.^[9]

---

[1] New York Times Reporter Jailed, CNN, Oct. 28, 2005.
[2] Marcus Wohlsen, Reporters to Appeal Order in Bonds Case, AP (via Yahoo!), Sep. 22, 2006.
[3] Walter Pincus, Senate Panel Freezes Bill on Legal Protection for Reporters, Washington Post, Sep. 24, 2006.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Zachary Coile, Chronicle Case Proves Need for Law, House Sponsor Says, San Francisco Chronicle, Sep. 23, 2006.
[9] Id.