Washington Post — Wikileaks controversy highlights debate over shield law

• By: ASNE staff
• On: 08/23/2010 10:17:00
• In: Shield law editorials

The Washington Post
August 21, 2010

Until just a few weeks ago, news organizations thought they were cruising toward a long-cherished goal: Congressional passage of a federal shield law to protect journalists from being forced to reveal confidential sources.

Then came Wikileaks.

The notoriety surrounding Wikileaks.org's release of nearly 76,000 secret military documents last month has complicated, and possibly imperiled, enactment of shield legislation pending in the Senate, proponents and opponents of the measure both say.

Wikileaks apparently obtained the documents, describing the U.S. military's conduct of the war in Afghanistan, from a military source and posted them on the Internet. The release sparked praise and criticism, the latter from government officials who said the revelations could endanger U.S.-led forces and their Afghan allies. At the same time, Wikileaks made the documents available to the New York Times and two other news organizations, which published stories based on them. Wikileaks founder Julian Assange says that his group plans to release an additional 15,000 documents this month.

The shield legislation would protect journalists from having to reveal anonymous sources when challenged by prosecutors in federal court. The protection wouldn't apply in all cases, however. In matters involving terrorism and national security, government lawyers could ask a judge to remove the shield. The bill passed the House and a Senate panel last fall, and it may come up for Senate debate after the August recess.

Supporters of the bill point out that such a law wouldn't affect Wikileaks. As a "virtual" organization, with no fixed address or country of origin, Wikileaks isn't subject to U.S. law, meaning it couldn't be protected or subjected to disclosure by an American court.

Nevertheless, Wikileaks seems to be overshadowing the discussion.

"It's true that some members of Congress are concerned" in the wake of Wikileaks' disclosures, says Kevin Smith, president of the Society of Professional Journalists, which has been advocating for a shield law for years. "There's a guilt-by-association factor here."

But opponents of the legislation say it gives judges too much leeway to determine what's in the "public interest" when it comes to protecting journalists in cases involving national security. They fear that investigators would have to release sensitive information to convince a judge to force a reporter to reveal his sources. For these reasons, Sen. Jeff Sessions (R-Ala.), the ranking minority member of the Senate Judiciary committee, has called the bill "deeply and fundamentally flawed."

One Republican aide, who was not authorized by his boss to speak publicly about the issue, said, "The Wikileaks controversy highlights some of the significant national security concerns about the shield legislation." As a result, he predicted the measure would not move forward this year.

To avoid having Wikileaks color floor debate on the bill this fall, Sens. Charles E. Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) have signaled that they will draft an amendment that would specifically exempt organizations like it.

Although specifics of the amendment have not been released, supporters say it is likely to deny protection to organizations that simply disseminate confidential or classified material in raw form, while extending it to news organizations that vet documents and do contextual reporting on sensitive materials.

Such a distinction was evident in the Wikileaks episode. While Wikileaks dumped its cache online in an unfiltered manner, the New York Times, the Guardian newspaper of Britain and Der Spiegel magazine of Germany used the material as the basis for news articles and analysis. The Times was even praised for seeking guidance from administration officials to ensure that its disclosures did not jeopardize lives in the field.

The shield legislation is backed by 70 media companies and news organizations, including The Washington Post Co., the New York Times Co. and the major TV news networks.

The law is necessary to stop "the escalation of subpoenas" against journalists by prosecutors, civil litigants and criminal defendants, said Paul Boyle, senior vice president of public policy for the Newspaper Association of America, a trade group that is part of the media coalition. Without the bill's protections, he said, journalists will become "the first stop rather than the last" in efforts to obtain information in legal cases. This could create a potential chilling effect on investigative reporting, he said, as whistleblowers stay silent rather than risk exposure and news organizations pull back in fear of protracted legal costs.

Boyle said that would-be leakers will take more material to groups such as Wikileaks since such organizations cannot be forced to give up their sources. A shield law, however, would give whistleblowers greater confidence that their identities won't become public, predisposing them to work with news organizations that exercise editorial control, he said.

Prosecutors and defendants' lawyers have used subpoenas to force reporters to reveal confidential information in a number of high-profile cases, including the disclosure of the identity of covert CIA officer Valerie Plame Wilson.

Not all of these cases involve state secrets or national security issues. In 2006, for example, federal prosecutors went to court to compel San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada to reveal the source of leaked testimony by baseball slugger Barry Bonds and others to a grand jury investigating a San Francisco area laboratory suspected of illegal steroid distribution. In 2007, a bioweapons expert, Steven J. Hatfill, subpoenaed reporters from nine news organizations, including The Washington Post, to force them to reveal who in the government had identified Hatfill as "a person of interest" in the 2001 anthrax poisoning case.

Boyle acknowledged that "there will be some situations where people are publishing information that's not in the public interest. In those cases, a court can decide that there's no shield. We're just saying: 'Let's establish rules so that everyone knows where and when a confidential source is protected.' "