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Jewish World Review
May 13, 2008
/ 8 Iyar 5768
The Leaker Shield Act
Frank J. Gaffney, Jr.
There is something unique about what has come to be called the War on
Terror. In this conflict, as the U.S. government struggles to defeat
the enemy and keep our people safe, it is up against not only those who
overtly and unambiguously seek to destroy us. It also confronts those
who are prepared to reveal classified information and programs, even
when doing so makes it harder to vanquish our foes and protect this
The latter fall into four principal categories:
Some call themselves "journalists" who work for traditional
news organizations, notably the New York Times. On occasion, they win
Pulitzer Prizes for compromising the Nation's secrets.
Some are members of what has come to be called the "new media"
or "alternative media." Most traditional journalists detest the idea
that their trade is being practiced by people who find in outlets like
on-line publications, the Blogosphere, YouTube and FaceBook vehicles to
disseminate information worldwide and instantaneously. But the reach of
the world-wide web is, well, world-wide and so is the impact of its
Among those making use of these "New Age" tools are some who
use the guise of journalism as a cover for our enemy's disinformation
and propaganda. In fact, some of the most capable users of the Internet
routinely engage in information warfare on behalf of Islamofascist
terrorist organizations like Al Qaeda, Hezbollah, Hamas and their
Then there are the individuals who hold positions of trust in
the federal government itself. They have been given access to secret
data and capabilities on the promise not to reveal such knowledge
without authorization. Yet, some choose to violate their oaths in the
furtherance of divergent policy agendas. Of course, folks in this
category are not journalists. They are called "sources."
It is imperative to consider these four categories as the U.S. Senate
prepares to consider legislation with the unobjectionable-sounding name
of the "Free Flow of Information Act (FFIA) of 2007." The bill, S.
2035, is better known as the "media shield" law. It would be more
accurate to call it the "Leaker and Other Enemies Shield Act."
Freedom of the press is, of course, one of the bedrock principles upon
which this nation was founded. And those who dare criticize the media
and its efforts to expand privileges it enjoys under the rubric of press
freedoms - notably, officials responsible for prosecuting journalists'
"confidential government sources" for the illegally revelation of
classified information - generally are subjected to very bad notices.
Still, it is a terrible idea - particularly in time of war - to be
providing "media shields" to anyone who can claim to be a journalist and
to their law-breaking sources in government. Yet, that is precisely
what S.2035 would do.
The FFIA creates a highly problematic journalist's privilege. It would
effectively prevent the federal government from compelling anyone
"engaging in journalism" to give testimony or produce any document
revealing that journalist's source, if the source gave the information
under cover of confidentiality.
Were S.2035 to become law, investigators and prosecutors charged with
bringing to justice sources who have engaged in criminal leaks would
have to prove all of the following to the satisfaction of a federal
judge: (1) The government has first exhausted all other avenues besides
the journalist to obtain a source's identity; (2) there are reasonable
grounds to believe that a crime has taken place; (3) the source's
identity is "essential" to the investigation; (4) the information that
was disclosed was "properly classified" to begin with; (5) the person
who leaked the information had authorized access to it; (6) the source's
unauthorized disclosure "has caused or will cause significant, clear,
and articulable harm to the national security; and (7) non-disclosure of
the source's identity would be contrary to the public interest when
weighed against the other public interest in "gathering news and
maintaining the free flow of information."
As a practical matter, as an array of Cabinet and subcabinet officers
responsible for keeping us safe and enforcing the law have warned the
Senate, no source is going to be held accountable under this law. For
example, Attorney General Michael Mukasey and Director of National
Intelligence Mike McConnell advised the Senate's leadership they would
be hobbled by myriad Catch-22s inherent in the FFIA.
Consider two of these cited by the AG and DNI: How can a prosecutor show
that a person who leaked information had authorized access to it
(Requirement 5), without first knowing the identity of the source? How
can a prosecutor show that a leak "has caused or will cause significant,
clear, and articulable harm to the national security" (Requirement 6),
without first having to offer evidence to a judge that will reveal even
more classified information?
By assuring "journalists" - the bill's definition is broad enough to
cover all of the first three categories described above - they need not
fear having to divulge the source of a leak, sources will feel even less
compunction than they do today to break their promises and leak with
In short, the Free Flow of Information Act is not about freedom of the
press. It is about freeing government officials of their legal
responsibilities and enabling those who would do us all harm - whether
intentionally or in the name of "the people's right to know." The
President's senior advisors have rightly indicated that they will
recommend his veto should this bill make it to his desk. Senators should
ensure that the Leakers and Other Enemies Protection Act never gets
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JWR contributor Frank J. Gaffney, Jr. heads the Center for Security Policy. Comments by clicking here.
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