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Terrorism and national security concerns

Argument: Passing this bill is bad public policy because it will hamper the government's ability to protect our nation from terrorist attacks and other threats to national security.

Argument: Passing this bill is bad public policy because it will hamper the government's ability to protect our nation from terrorist attacks and other threats to national security.

Response:

  • The bill provides an exception to the privilege so the government can prevent an act of terrorism against the United States and our allies and other specified harm to national security. The terrorism and national security exception provides broad protection for national security. If the exception were any broader, it would swallow the rule.
  • If the government wants information for an investigation on a past terrorist act, it could obtain that information from a reporter under this exception with the objective of preventing a future “act of terrorism.” The government can also pierce the shield if they need information from a reporter to prevent significant harm to national security.
  • Under the bill, the government only has to make this showing by the “preponderance of the evidence” standard which means that the government only has to show that an act of terrorism or significant and specified harm to national security is “more likely than not.” This a less restrictive standard than the DOJ's own guidelines.
  • Finally, the public interest balancing test provides courts with great discretion in deciding whether the identity of a source is necessary to prevent terrorism or significant harm to national security. It also ensures that the government cannot override the privilege by merely uttering the words “national security.” Courts have had a long history of applying public interest balancing tests, such as in situations involving state secrets, limits on access to evidence, and phone records.

As the following examples illustrate, even under a balancing test courts will rule for the government when the government invokes legitimate concern for national security.

Disclosure of phone records: Applying a balancing test, the federal Court of Appeals in New York held that the government could subpoena the phone records of a newspaper who was informed that the government planned to freeze the assets of and search the premises of two foundations suspected of financing terrorism. See New York Times v. Gonzales, 459 F.3d 160, 170 (2d Cir. 2006).

Disclosure of source: In the Judith Miller/Valerie Plame case, Judge Tatel applied a balancing test and held “the public interest in punishing the wrongdoers-and deterring future leaks-outweighs any burden on newsgathering, and no privilege covers the communication.” In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1178 (D.C. Cir. 2006) (Tatel, J., concurring in the judgment).

Application of state secrets privilege: Courts regularly dismiss suits which might require the government to disclose state secrets. See, e.g. Tenet v. Doe, 544 U.S. 1 (2005) (dismissing suit against government due to “state secrets privilege”); El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) (same).

Limits on access to evidence: In the prosecution of Zacharias Moussaoui, the federal Court of Appeals in Virginia allowed the government to go forward with the prosecution — and to seek the death penalty — even though the Government refused to produce certain witnesses (who were detained as enemy combatants) who could offer testimony helpful to Moussaoui. See United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004).

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