Shielding official leakers

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.

• Some 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 “journalists.”

• 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.

The 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

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