Philadelphia Inquirer, Oct. 20

At Senate hearing, journalists seek federal shield law
They said news-gathering was hampered, at a cost to the public. Critics cited law-enforcement needs.

By Chris Mondics
Inquirer Washington Bureau

Granting that her own example might be problematic, the New York Times reporter jailed for refusing to testify in a White House leak probe said Oct. 19 that the case had hampered news-gathering and urged Congress to pass legislation restricting when prosecutors can seek information from journalists.

Judith Miller, testifying at a Senate Judiciary Committee hearing, said journalists' protections were urgently needed because the government was classifying more and more documents as secret. Without whistle-blowers, she said, there is little hope the public will ever gain access to such information.

"Admittedly, the situation that sent me to jail was not as clear-cut -- it was not the case of a government or corporate whistle-blower, but an all-too-familiar case of Washington politics," Miller said. "Yet the principle that confidential sources must be protected must apply in all cases; indeed, one person's whistle-blower is another's snitch."

The concept of a federal shield law seemed to draw a sympathetic reception from the committee chairman, Arlen Specter (R., Pa.). But other members, both Republicans and Democrats, appeared concerned that protections for reporters could hamper law enforcement, particularly in national-security cases.

Government's role

"We must also be careful not to unnecessarily tie the hands of legitimate law-enforcement investigations," said Sen. John Cornyn (R., Texas), who called protections justified in some instances. "We cannot prevent the government from obtaining information while it is conducting legitimate investigations."

Miller was released Sept. 28 following 85 days in a federal jail in Alexandria, Va., after she agreed to appear before a federal grand jury investigating who leaked the identity of CIA operative Valerie Plame. She said she agreed to testify after her source, I. Lewis Libby, Vice President Cheney's chief of staff, directly assured her he had waived his confidentiality.

Miller never wrote a story on the subject, but others did. Special prosecutor Patrick Fitzgerald appears intent on finding out who in the White House leaked information and whether any federal laws were broken.

Sharp contrasts

Sens. Richard G. Lugar (R., Ind.) and Christopher J. Dodd (D., Conn.) have proposed a bill that would allow prosecutors to seek confidential-source information only in narrow circumstances such as national-security cases. Prosecutors would also have to show they could not get the information elsewhere, and news organizations could challenge prosecutors' requests.

The Justice Department opposes shield laws for reporters, in part because the legal protections they offer might slow criminal investigations at critical points, testified Chuck Rosenberg, the U.S. attorney in Houston. Only a dozen reporters have been subpoenaed in criminal proceedings for confidential-source information since 1991, he said, and the department has stringent standards for such subpoenas.

Rosenberg's view sharply contrasted with assertions by print and broadcast journalists that forcing reporters to divulge confidential information had greatly complicated news-gathering.

Anne Gordon, The Inquirer's managing editor, testified that media antagonists had increasingly been emboldened to subpoena The Inquirer to force it to divulge confidential information. She said that the trend had intensified since Fitzgerald sought to force Miller to testify but that aggressive legal tactics had not kept any stories out of The Inquirer.

"Are we subpoenaed regularly?" she said. "Absolutely, and we have the legal bills to prove it."

The lack of a federal shield law undermines protections provided by state shield laws such as Pennsylvania's, since reporters might be summoned to testify in federal cases, Gordon said.

Miller's legal travails began when former Ambassador Joseph C. Wilson IV, who had traveled to Niger to evaluate reports that Iraq had sought uranium there, published a column in 2003 alleging that the Bush administration had manipulated intelligence data to exaggerate the Iraqi threat.

Eight days later, syndicated columnist Robert Novak identified Wilson's wife as an "agency operative on weapons of mass destruction." Novak also wrote that "two senior administration officials" disclosed that Valerie Plame had promoted her husband within the CIA for the trip, raising the issue of nepotism.

Fitzgerald appears to be focusing his probe on both Libby and Karl Rove, President Bush's top political adviser. The grand jury overseeing the case is set to expire Oct. 28, so a decision by Fitzgerald on any possible indictments is expected soon.

For many news-gathering operations, the consequences are already being felt.

ABC News president David Westin testified that ABC increasingly had to evaluate not only whether a story involving a confidential source was newsworthy and accurate, but also whether it might invite an effort by law enforcement to force ABC to identify its sources.

"There is now a third element," Westin said -- namely, "are we willing to risk a subpoena?"