There is something unique about what has come to be called the War
on Terror. In this conflict, as the U.S. government struggles to defeat
the enemy and keep our people safe, it is up against not only those who
overtly and unambiguously seek to destroy us. It also confronts those
prepared to reveal classified information and programs, even when that
makes it harder to vanquish our foes and protect this country.
The latter fall into four principal categories:
Some call themselves "journalists" who work for traditional news
organizations, notably the New York Times. On occasion, they win
Pulitzer Prizes for compromising the nation's secrets.
are members of what has come to be called the "new media" or
"alternative media." Most traditional journalists detest the idea their
trade is practiced by people who find in outlets like online
publications, the blogosphere, YouTube and FaceBook vehicles to
disseminate information worldwide and instantaneously. But the reach of
the Worldwide Web is, well, worldwide and so is the impact of its
• Among those making use of these "New Age"
tools are some who use the guise of journalism as a cover for our
enemy's disinformation and propaganda. In fact, some of the most
capable users of the Internet routinely engage in information warfare
on behalf of Islamofascist terrorist organizations like al Qaeda,
Hezbollah, Hamas and their state sponsors.
• Then there are
the individuals who hold positions of trust in the federal government
itself. They have been given access to secret data and capabilities on
the promise not to reveal such knowledge without authorization. Yet,
some choose to violate their oaths in the furtherance of divergent
policy agendas. Of course, folks in this category are not journalists.
They are called "sources."
It is imperative to consider these
four categories as the U.S. Senate prepares to consider legislation
with the unobjectionable-sounding name of the "Free Flow of Information
Act (FFIA) of 2007." The bill, S. 2035, is better known as the "media
shield" law. It would be more accurate to call it the "Leaker and Other
Enemies Shield Act."
Freedom of the press is, of course, one
of the bedrock principles upon which this nation was founded. And those
who dare criticize the media and its efforts to expand privileges it
enjoys under the rubric of press freedoms — notably, officials
responsible for prosecuting journalists' "confidential government
sources" for illegally revealing classified information — generally are
subjected to very bad notices.
It is a terrible idea — particularly in time of war — to provide
"media shields" to anyone who can claim to be a journalist and to their
lawbreaking government sources. Yet S.2035 would do precisely that.
FFIA creates a highly problematic journalist's privilege. It would
effectively prevent the federal government from compelling anyone
"engaging in journalism" to give testimony or produce any document
revealing that journalist's source, if the source gave the information
under cover of confidentiality.
Were S.2035 to become law,
investigators and prosecutors charged with bringing to justice sources
who have engaged in criminal leaks would have to prove all of the following to the satisfaction of a federal judge:
(1) The government has first exhausted all other avenues besides the journalist to obtain a source's identity.
(2) There are reasonable grounds to believe a crime has taken place.
(3) The source's identity is "essential" to the investigation.
(4) The information disclosed was "properly classified" to begin with.
(5) The person who leaked the information had authorized access to it.
The source's unauthorized disclosure "has caused or will cause
significant, clear, and articulable harm to the national security."
And nondisclosure of the source's identity would be contrary to the
public interest when weighed against the other public interest in
"gathering news and maintaining the free flow of information."
a practical matter, as an array of Cabinet and sub-Cabinet officers
responsible for keeping us safe and enforcing the law have warned the
Senate, no source is going to be held accountable under this law. For
example, Attorney General Michael Mukase and Director of National
Intelligence Mike McConnell advised the Senate's leadership they would
be hobbled by myriad Catch-22s inherent in the FFIA.
two of these cited by the AG and DNI: How can a prosecutor show that a
person who leaked information had authorized access to it (Requirement
5), without first knowing the identity of the source? How can a
prosecutor show a leak "has caused or will cause significant, clear,
and articulable harm to the national security" (Requirement 6), without
first having to offer evidence to a judge that will reveal even more
By assuring "journalists" — the
bill's definition is broad enough to cover all of the first three
categories described above — they need not fear having to divulge the
source of a leak, sources will feel even less compunction than they do
today to break their promises and leak with impunity.
short, the Free Flow of Information Act is not about freedom of the
press. It is about freeing government officials of their legal
responsibilities and enabling those who would do us all harm — whether
intentionally or in the name of "the people's right to know."
president's senior advisers have rightly indicated they will recommend
his veto should this bill make it to his desk. Senators should ensure
that the Leakers and Other Enemies Protection Act never gets there.