Bay City Times — Detroit case shows the need for a federal 'shield law'

• By: ASNE staff
• On: 01/07/2009 15:28:06
• In: Shield law editorials

The Bay City (Mich.) Times
January 07, 2009

A Detroit Free Press reporter's fight to keep confidential the source of a story on prosecutorial misconduct alleged in the War of Terrorism is a strong and timely argument for the 111th Congress to reintroduce a “Free Flow of Information Law.”

A federal law shielding reporters from demands in court that they reveal their sometimes confidential sources is sorely needed.

It seems that the First Amendment to the U.S. Constitution isn't enough anymore to ensure a free press: “Congress shall make no law ... abridging the freedom of speech, or of the press. ...”

Detroit Free Press reporter David Ashenfelter actually felt it necessary to also invoke the Constitution's Fifth Amendment protection against self-incrimination last month.

Ashenfelter declined under oath to reveal who told him that a federal prosecutor was being investigated regarding a botched terrorism investigation.

Former federal prosecutor Richard Convertino wants the information in his whistleblower lawsuit against the federal government. He says the leak of news that there was an investigation was illegal.

That sort of wild-eyed claim, whether eventually proven true or not, is exactly why some people will not talk to reporters about sensitive matters unless newspapers or other news-gatherers grant them anonymity.

It's an agreement rarely made in most newsrooms. It's not taken lightly.

Reporters have gone to jail for months on contempt-of-court charges over their refusal to identify their confidential sources.

It's a pact that is sometimes needed in order to pry open the doors of government that too often rightly or wrongly are closed to public view.

Without Ashenfelter's source, the public might never have learned of accusations that Convertino misled the court and ignored evidence that undermined the “sleeper-cell” terrorism case in Detroit against four North African men.

Two of the men were convicted, but their convictions were reversed at the government's request. Convertino and a State Department witness were later tried and acquitted on obstruction of justice and other charges.

This sorry episode is part and parcel of the shameful practices that the U.S. government has too often undertaken in the name of national security since the horror of 9/11.

The people's right to know what government is doing on their behalf is under assault. Many of the abuses, from the cages of Guantanamo Bay and the torture of Abu Ghraib to the secrets that the USA Patriot Act allow, would not have become public if not for an intrepid press corps and its sometimes anonymous sources.

If ever there were a time to ensure that the public learns the secrets of what its government is doing, it is now.

A federal shield law is needed.

In July, the U.S. Senate refused to debate the “Free Flow of Information Law” that the House had overwhelmingly passed in 2007. It's noteworthy that the law does not allow reporters to protect sources when national security concerns are imminent. The legislation died with adjournment on Jan. 3 of the 110th Congress.

Congress should revive, and pass, that law. So far, 34 states, including Michigan, have recognized the need to protect the free flow of information, and the reporters and their sources who ensure that the public remains informed.

Without a federal shield law, people who may have knowledge of government misconduct could become reluctant to whisper their secrets.

And the public would never learn and correct the sometimes awful, possibly illegal, things done in its name.