WaPo Joins Ted Olson in Supporting the Bill, Opposes Special Prosecutor Patrick Fitzgerald for Criticizing It
As GOP-Introduced Bill Heads to Full Senate...
By Margie Burns on 10/5/2007, 6:35am PT  

Guest Blogged by BRAD BLOG's D.C. Correspondent, Margie Burns

It was a big day on Thursday in the national capital, with several flaming surges hitting the news at once – the Washington Post hooking up with the MSM campaign to put “Hillary” over the top before the magic deadline of October 15 (more on that later, elsewhere); Rep. Henry Waxman and the House Government Reform and Oversight Committee holding a powerful hearing on Iraqi corruption; the blocking of Hans von Spakovsky's nomination to the FEC; and discussion of a proposed federal shield law for journalists (full text of bill here), which was reported out of the Senate Judiciary Committee today to the full Senate.

While I was able to sit in for hearings on two of the items above, space and time regrettably being constraints, I'll cover only the proposed shield law for the moment. Right up top, I have to say that I have qualms about it. A real leak, by a whistleblower exposing a crime or some danger to the public, is one thing. But protecting journalists from exposing a politically motivated ‘source’ trying to plant misinformation is another. This bill, as it was debated in committee and written about in papers yesterday, might equally protect both, if it protects either...

S.2035, the “Free Flow of Information Act of 2007,” was introduced on September 10, 2007, by Sen. Arlen Specter (R-PA) with four co-sponsors – Senators Chris Dodd (D-CT), Lindsey Graham (R-SC), Charles Schumer (D-NY), and Richard Lugar (R-IN). The bill closely resembles but expands on S.1267, same title, introduced on May 2, 2007, by Lugar. The companion bill in the House was H.R.2102, also same title, introduced at the same time by Rep. Frederick "Rick" Boucher (D-VA).

In fact, either Lugar or his Indiana GOP colleague, Rep. Mike Pence, has introduced a version of this legislation every year starting in 2005, pretty much the duration of the CIA-Plame leak investigation if memory serves. Presumably the bill was drafted largely in response to Judith Miller’s situation.

Today’s Washington Post carries two op-eds on the bill: a column critical of it by US Attorney Patrick J. Fitzgerald, and a column supporting it by former Solicitor General Theodore B. Olson. The Post is also running an editorial today supporting the bill themselves.

The Olson column seems, at a couple of points, responsive to the Fitzgerald column, but the assistant editor I got hold of at the Post did not know whether Olson had been given/informed about the other piece, and said courteously that he was not sure "that’s information we’d be allowed to give out."

Not being a lawyer myself, I cannot determine exactly what the proposed legislation will do, although I know that I am very leery of this bill – even aside from looking at its roster of supporters and its timing in regard to the Plame-CIA leak and the Libby trial.

One point to make is that from either the angle of protecting journalists or that of compelling disclosure, it seems to have a loophole big enough to drive a newspaper delivery truck through:

(a) Conditions for Compelled Disclosure- In any proceeding or in connection with any issue arising under Federal law, a Federal entity may not compel a covered person to provide testimony, or produce any document, relating to protected information, unless a Federal court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to such covered person--

(1) that the party seeking to compel production of such testimony or document has exhausted all reasonable alternative sources (other than a covered person) of the testimony or document;

(2) that--
(A) in a criminal investigation or prosecution, based on information obtained from a person other than the covered person--
(i) there are reasonable grounds to believe that a crime has occurred;
(ii) the testimony or document sought is essential to the investigation or prosecution or to the defense against the prosecution; and
(iii) in a criminal investigation or prosecution of an unauthorized disclosure of properly classified information by a person with authorized access to such information, such unauthorized disclosure has caused significant, clear, and articulable harm to the national security; or
(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than the covered person, the testimony or document sought is essential to the resolution of the matter; and

(3) that 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 gathering news and maintaining the free flow of information.

As suggested above, one immediate question about the bill is whether it at all distinguishes between a leak and a plant.

One of the most worrisome comments in Olson’s op-ed column, particularly because it seems pretty casual and unexamined, is Olson’s use of not only the Plame case but the Wen Ho Lee case as points in SUPPORT of the proposed shield law. Olsen writes:

Yet it has become almost routine for journalists to be slapped with federal subpoenas seeking the identity of their sources. From the Valerie Plame imbroglio to the Wen Ho Lee case, it is now de rigueur to round up reporters, haul them before a court and threaten them with fines and jail sentences unless they reveal their sources.

Without getting into the question of how “routine” federal subpoenas for journalists actually are, and setting aside Olson’s predictable partisanship against Plame, the Wen Ho Lee case is no sterling example of disclosure that should be protected at all cost. Like Steven Hatfill, outed in connection with the FBI investigation of those (unsolved) anthrax mailings to a whole slew of journalists at once, by a concomitant number of anonymous government officials, Wen Ho Lee has been acknowledged to be the target of a concerted hit by government and media.

A genuine leak is one thing. A little group of unnamed administration officials violating policy by divulging personnel matters in a concerted op to discredit a targeted individual, for political reasons, is quite another.

Obviously it would be difficult to formulate this distinction in a law. How do you legislate in a way to protect journalists whose sources are genuine whistleblowers, acting in the public interest, without granting some kind of immunity to journalists and their administration abettors who are genuine snakes?

But the problem is a real one. Hatfill’s becoming the object of a media frenzy may very well have impeded or complicated whatever genuine investigation there was, into those anthrax mailings. The overblown and lurid accusations against Wen Ho Lee complicated diplomacy with China, again assuming there was any, and presumably clogged and complicated any genuine investigation.

The motivation behind the proposed legislation --- to be brought up on the Senate floor some time in the next several weeks, presumably – is undoubtedly mixed; a combination of genuine sympathy for reporters on one hand, and the in-crowd trying to protect government’s ability to use favored media as an arm of one branch of one administration, on the other. Opposition seems mixed, too, in a strange-bedfellows sort of way: while the bill was invented by GOP senators, the only two senators on Judiciary to vote against it --- Kyl of Arizona and Brownback of Kansas --- are also GOP, as are the two who passed, Sessions of Alabama and Coburn of Oklahoma. Seeing Kyl try to slow up/amend the bill gave me some sympathy for him, too.

I would welcome some feedback on this piece. I’ve already seen both points of view expressed elsewhere.

Meanwhile, the Post editorial, short but not too short to be disingenuous, reminds me why I don’t read editorials:

We strongly support efforts to protect journalists and their sources. The Washington Post Co. and other media organizations have lobbied for the bill, which would keep prosecutors from going after reporters as a first resort...

Actually, prosecutors are already prevented from “going after reporters as a first resort,” since the DOJ has guidelines against exactly that. But the Post, which replies to Fitzgerald’s piece though not Olson’s, seems not to have given the prosecution a final rebuttal.