Barre Montpelier Times Argus – Safeguards for press keep secrecy at bay

• By: ASNE staff
• On: 10/30/2007 13:04:12
• In: Shield law editorials

The Barre (Vt.) Montpelier Times Argus
Oct. 21, 2007

A federal press shield law moved closer to passage last week, and Sen. Patrick Leahy was taking steps to ensure that the bill continued its journey toward final approval.

In two ways the importance of a shield law has become increasingly clear. First, the press has played an essential role in bringing to light activities of the Bush administration that range from shadowy to illegal. Second, federal authorities have been increasingly willing to force journalists either to divulge confidential sources or to pay a price.

The jailing of Judith Miller, former reporter for The New York Times, in the case of Valerie Plame, the CIA agent unmasked by members of the Bush administration, was the most notorious recent incident. More pernicious is the self-censorship that occurs - just as it does in places like Russia or China - when editors and reporters decide not to pursue important stories because they cannot afford to be dragged into court.

Throughout his career Leahy has been a stout defender of the First Amendment, and his belief in a free press has helped him guide a shield law through the Senate Judiciary Committee. In the end, he was able to cement together an extraordinary bipartisan coalition, winning approval for the shield law in a 15-2 committee vote.

Even more extraordinary was the action last week by the House, which approved its own version of the shield law by a vote of 398-21. It is clear that Republicans and Democrats alike understand the importance of an unfettered press whose practitioners are free of the fear that prosecutors will dragoon them into a case by forcing them to divulge confidential sources.

The practice of using confidential sources raises issues of accountability and may have contributed to public doubts about the reliability of the media. Undiscriminating use of confidential sources can be a crutch for a lazy reporter who is willing to be manipulated and used. Readers and viewers ought to be on the alert for confidential information that is nothing more than dressed up gossip or innuendo.

But the importance of confidential sources has been on display in recent years as reporters have learned of an array of secret activities of the Bush administration, including: unwarranted domestic spying; secret CIA prisons; torture and high-level approval of torture; war planning against Iran; corruption of the Justice Department; and, perhaps, the least controversial issue of all these, the unmasking of CIA agent Plame.

Leahy took parliamentary steps last week following passage of the House bill to ensure that the measure would see speedy action. At the same time, he and staff members were reviewing the House bill to examine differences with the bill passed by the Senate Judiciary Committee. Civil libertarians and others had raised questions about the House bill, which incorporated some amendments that weakened its protections.

It has been important that the bill include provisions ensuring that journalists do not have the privilege of confidentiality when national security is at stake. But the House bill goes further, allowing courts to weigh the possibility of harm to national security even if the information given to the reporter is not classified. The bill also allows the administration to designate a reporter a terrorist on the basis of unsubstantiated evidence.

President Bush has said he would veto the shield bill, and his nominee for attorney general, Michael Mukasey, told Leahy's committee on Thursday he would support Bush's opposition to the bill. Mukasey said it was sufficient for the Justice Department to follow its own guidelines on when to demand information from journalists.

But the Justice Department's record does not inspire confidence, and Mukasey's promises may be no more reliable than those of his predecessor. Building safeguards for the press into the law is more essential at this moment in history than in many years.

Leahy was a longtime friend of James L. Oakes, the U.S. appellate judge from Brattleboro, who died last week. He can take heart from Oakes' admirable record on press freedom. Oakes was a dissenter on the appeals court when the court ruled to bar The New York Times from continuing publication of the Pentagon Papers. The U.S. Supreme Court eventually sided with Oakes.

Oakes believed that a strong and free press was essential not only to expose wrongdoing in government, but also to facilitate the functioning of democracy. The last seven years have shown us what disasters ensue when secrecy is the rule. Leahy's determination to champion the press shield law and to nurture a bipartisan coalition to overturn a possible veto by Bush places him in line with the great civil libertarians in Vermont's history the history of the nation.