The red herrings are being served up so fast over a proposed federal shield law for journalists that it's hard to keep track.
Top law enforcement and national security officials in the Bush administration have urged the Senate to reject the Free Flow of Information Act, a bill that would protect reporters from having to disclose their confidential sources, with some exceptions. When all the scary language about endangering security is pushed aside, it is clear that the Bush administration's real objection is that it doesn't like the idea that the federal courts will be asked to strike a proper balance between the interests of law enforcement and the public's right to know about the workings of government.
Unlike a majority of states, federal law doesn't shield reporters from being forced to name their sources to prosecutors and civil litigators, meaning that reporters are constantly in danger of being held in contempt of court and jailed for refusing to cooperate, and their confidential sources are constantly at risk of being outed.
The Free Flow of Information Act, which passed the House last fall by a large bipartisan majority and is awaiting a vote in the Senate, would address this gap in the law and grant journalists a limited reporter's privilege to keep their sources confidential. The Bush administration is undoubtedly concerned that a shield law might encourage more anonymous whistle-blowing and more embarrassing revelations.
Letters of opposition were sent recently to key senators by Attorney General Michael Mukasey, national intelligence director Mike McConnell, Defense Secretary Robert Gates and Homeland Security Secretary Michael Chertoff. These officials claim the bill would restrict the government's ability to garner information from journalists related to national security investigations and to prevent the leaking of classified information. Mukasey and McConnell also raised concerns about the broad definition of a journalist, suggesting that terrorists and their supporters could use the shield if they engaged in some form of journalism.
In fact, the bill already excludes suspected terror organizations and agents of foreign powers from its coverage, and it includes exceptions for national security cases. When the potential harm to national security outweighs the public's interest in news gathering, a court would be able to order that a journalist disclose his sources.
But instead of allowing courts to make that judgment, Mukasey and McConnell contend that the determination of what constitutes harm to national security should be left entirely to the executive branch.
This would essentially gut the bill. Such judgments simply must be left to an impartial judge who has both the interests of national security and the need for the free flow of information in mind. Otherwise, the administration will have license to force disclosure at its pleasure — exactly what it seeks.
Sen. Arlen Specter, R-Pa., the bill's primary sponsor, is in negotiations with the administration and might make adjustments to the bill. If the Senate makes too many concessions, this proposed "shield" will look more like a sieve.
Where Florida's senators stand on a federal shield law: Democrat Bill Nelson supports the bill. Through a spokesman, Republican Mel Martinez said he supports the measure but has some concerns about its national security language.