The White House strongly opposes the Free Flow of Information Act, which passed in the House last October by a 398-22 veto-proof majority. The full Senate has not yet voted on its version of the legislation, which is sponsored by Arlen Specter. Both bills enact a federal statutory protection for journalists, recognized by most states, known as a reporter's privilege against compelled disclosure of confidential sources.
The issue is especially timely for James Risen, a reporter for The New York Times. In February, Risen was subpoenaed to appear before a Federal grand jury in Alexandria, Va. to divulge the source of information for a chapter in his book State of War. The chapter deals with Operation Merlin, a failed CIA operation aimed at infiltrating Iran's nuclear development program. According to CBS, one of the CIA agents who worked on Operation Merlin was Valerie Plame Wilson.
If Congress were to enact the bills into law, would Risen be exempt from testifying? It depends. Under the proposed legislation, and in almost all states, a reporter's privilege is not absolute. Both bills codify the view of a reporter's privilege as set forth by Federal Circuit Judge David Tatel, whose well-regarded opinion rejected the appeals of Judy Miller and Matt Cooper.
The new law would impose a number of hurdles for a prosecutor to surmount, to the satisfaction of a judge, before compelling a journalist's disclosure of a confidential source. Specifically, in a criminal investigation into the leak of classified information, the prosecutor who seeks the identity of the leaker must first demonstrate:
- That all other reasonable means of obtaining the information had been exhausted,
-That there are reasonable grounds to believe that a crime has occurred,
- That the requested information is essential to the investigation, prosecution or defense,
- That the purported crime involves a person who had authorized access to classified information and who made an unauthorized disclosure that "has caused or will cause significant, clear, and articulable harm to the national security," and
- That the public interest in compelling disclosure of the leaker outweighs the public interest in gathering or disseminating news or information.
If a judge is persuaded by a preponderance of the evidence that those hurdles have been met, he may compel the journalist to give narrowly tailored disclosure.
As Judge Tatel wrote three years ago in his opinion that rejected the arguments of Judy Miller's appeal:
"Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jury's need for the reporters' evidence, I might have supported the motion to quash. Because identifying appellants' sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court's orders compelling their testimony."
We do not know the details pertaining to the James Risen subpoena. It may be a mere coincidence that the White House and its mouthpieces had previously attacked Risen and The New York Times with bogus claims about harm to national security. After Risen broke the story about the administration's illegal wiretap operation, Bush and his flunkies started screaming all sorts of nonsense, as if the terrorists did not already know they may be wiretapped.