By Walter Pincus
pincusw@washpost.com

Director of National Intelligence John M. (Mike) McConnell told an audience last month, “There is actually a higher level of protection provided for trade secrets than there are for national security information” in the proposed reporters’ shield law that passed the House of Representatives on Oct. 16.

“My view is that is out of balance and we need to get that right,” McConnell said, pointing out a detail in the bill now on the Senate calendar. Up to now it has had little public analysis but nonetheless media companies, including my newspaper and many others, have helped push it toward passage.

McConnell may have overstated his point, but not by much. Journalists’ confidential sources on stories disclosing trade secrets will get about the same protection as those who disclose classified national security information.

How did we get to this situation?

Subpoenas to journalists in the Wen Ho Lee and Valerie Plame cases, plus a blip in the number of subpoenas issued to other reporters, pushed media companies and organizations to lobby Congress for a federal shield law. At the Washington Post, where subpoenas came in both those cases, we understand what a costly and painful process this can be for reporters and their bosses. I was subpoenaed in both those cases.

But seeking a federal shield law from Congress to grant us a privilege that I believe already exists in law is a bad misstep, particularly since no other professionals – doctors, attorneys, ministers, social workers – have needed such legislation.

First off, we are seeking a privilege from people we cover. We are lobbying Congress, an activity we regularly, and sometimes unfairly, criticize when others do it.

Secondly, journalists are in effect allowing Congress to regulate them. How? Read the bill that passed the House and the Senate Judiciary Committee overwhelmingly and was praised by editorials in the Post and other newspapers. In its Section 4, the proposed bill defines “covered persons,” i.e. journalists recognized to be shielded under the proposed law, and those who also publish news for public distribution but will NOT be considered “covered.”

These are “any person who is a foreign power or agent of a foreign power” as defined in the recent amendments for the Foreign Intelligence Surveillance Act. Where does that put reporters for the BBC, al-Jazeera, the Iranian news services and the Iraqi government owned newspapers and television outlets? Also in the non-journalist category are those associated with organizations or persons on the Secretary of State and Treasury lists of terrorist groups or those who contribute to such organizations.

Take this one step further. If this bill had been proposed in the 1950s, I guarantee “covered persons” would not have included anyone associated with the Communist Party or liberal organizations designated as fellow travelers. In the 1960s and 1970s it probably would not have included those associated with anti-Vietnam war groups or radical civil rights organizations.

Think who could be added to that list of uncovered persons by a future Congress when you talk about depending on Congress to approve the shield law.

The heart of the premise for the shield law was protection for journalists’ sources who provided information for stories like the CIA overseas prisons, warrantless wiretapping and Abu Ghraib. That was what McConnell was talking about when he mentioned "national security information.” A judge, under the proposed law, must determine whether the harm to national security from the published story outweighs the public interest in disclosing it before ordering the source to be identified.

Define for me “national security” and find a federal judge who will tackle such a balancing act.

Then, in the section that McConnell mentioned, there is an additional group of exceptions. Sources cannot be protected if they have provided a reporter with stories disclosing “a trade secret,” health records of an individual under a section of the Social Security Act or financial information about a consumer under banking acts. Here the judge must determine that the damage to journalism in disclosing the source outweighs the public interest in the publication of the resultant story. These provisions were added to get business interests to support the bill and gain Republican and conservative Democratic votes.

Logrolling is what happens when you go to Congress asking for a favor. Other lobbying groups join in to get benefits for their clients or industries. We normally write about such activities when they involve tax or appropriations bills. We haven’t done well covering this effort which involves ourselves.
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This is an update of a section of a talk Pincus gave October 31 at the University of Nebraska, entitled "The Role of the News Media," as part of a Pentagon Papers Symposium put on by the colleges of Law and Journalism and Mass Communication.

Walter Pincus reports on national security issues for The Washington Post. E-mail: pincusw@washpost.com

Comments

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Nice Posted by Mark Eichenalub - http://regimeofterror.com 04/17/2008, 09:47 PM Very thoughtful piece Mr. Pincus. This is a serious topic worthy of serious discussion. You certainly have shown yourself as someone whose opinion should be one of the first consulted on this topic.

Analyst Posted by Jim Hess 06/10/2008, 02:05 AM It would also provide cover to the journalists pipelining talking points from the administration in order to influence public opinion while shielding the officials from charges of breaking the laws they have sworn to uphold. Ellswater was willing to do the time. That's the classic test of patriotism and civil disobediance. Submit a comment - Jump to top of list