A bill that is intended to strengthen the ability of reporters to protect their confidential sources would encourage damaging leaks of classified information, congressional opponents argue.
The Free Flow of Information Act (S. 987) was approved by the Senate Judiciary Committee on September 12 by a vote of 13-5. The Committee’s report on the bill, which includes a lengthy dissent from several Republican Senators, was published late last week.
The Act would establish a “qualified” reporter’s privilege whose application would be limited in several respects.
So, for example, the privilege would not apply to “information obtained as a result of the journalist’s eyewitness observation of an alleged crime, or as a result of alleged criminal conduct by the journalist.” However, the Act’s protections would apply to leaks (“when the communication of the material is itself the alleged criminal conduct”).
But even with respect to leaks, the privilege would not be absolute, and disclosure of confidential source information could be required by a court under some circumstances, including the prevention of terrorism.
“In cases that involve alleged unauthorized disclosures of properly classified information (‘leaks’), the Act allows a court to compel the disclosure of confidential-source information where disclosure would assist in preventing or mitigating an act of terrorism or acts that are reasonably likely to cause significant and articulable harm to national security,” the new Committee report explained.
The bill’s limited scope of protection would “give generous berth for the Government to obtain the vital information that it needs in order to protect public safety,” the Committee report said. “At the same time, these provisions prevent journalists from becoming the witnesses of choice in civil and criminal cases.”
The Free Flow of Information Act has been criticized by some press freedom advocates because it presumes to define who is — and who is not — a covered journalist that is protected by the Act; or because it would actually validate official measures to compel disclosure of sources in some cases.
But neither these ambiguities nor the bill’s cautiously even-handed approach were sufficient to reassure opponents on the Senate Committee, who insisted that the legislation would wrongly protect leakers and foster more leaks.
“Instead of making it easier for investigators and prosecutors to bring to justice those who would imperil our national security, the Committee has endorsed legislation that would do the exact opposite by explicitly protecting leakers of classified information and increasing the burden on those who seek to bring these leakers to justice,” wrote Senators Jeff Sessions and John Cornyn in a dissenting statement appended to the Committee report.
“The cumulative effect of this burden would cripple the government’s ability to identify and prosecute leakers of classified information, and in the process would encourage more leaks that threaten national security.”
The bill “severely hinders the government’s ability to identify the sources of leaked classified information,” they complained. “Sources that hide behind journalists’ promises of confidentiality in order to perpetrate wrongdoings, such as the leaking of classified information, will receive protection under S. 987.”
In short, from the opponents’ perspective, “This bill sets forth special standards that place protecting a leaker’s identity ahead of the safety and security of the country.”
“It is axiomatic that if Congress protects leakers of classified and other sensitive information by passing S. 987, what will result is more leaks of classified information.”
“S. 987 will encourage leakers of classified or grand jury information to get away with clear violations of federal law, so long as the recipient of the information promises to keep the leaker’s identity a secret.”
“An individual who leaks classified or grand jury information commits a grievous crime and does not deserve the protection afforded by a journalist’s successful assertion of privilege. If leakers of classified or grand jury information are protected under S. 987, we believe that more leaks will result and it will be harder to prosecute them,” the dissenting Senators wrote.
Subpoena proceedings against reporter James Risen in the leak prosecution of former CIA officer Jeffrey Sterling have been stayed at Risen’s request pending a petition on the matter to the U.S. Supreme Court.