Politics & Policy

Press That Shield Back

Reporters already have protection, and they owe the public their testimony … just like the rest of us.

Since the War on Terror began, all sectors of the American public have been called upon to do their duty to help aid the war effort. For those opposed to any military action (or war) at all, the best we could hope for from our citizenry was some form of the Hippocratic Oath: at least do no harm. And the American people, by and large, have risen to their duties of citizenship. One sector has, however, behaved miserably: the American media. They have disclosed, published, and broadcast to the world national security secrets from NSA surveillance programs to Treasury Department funds-tracking programs and they have outed allies who helped us hold high-value terrorist detainees such as Khalid Sheikh Mohammed.

For this behavior has a single member of the press been investigated, much less prosecuted? No. Instead, they have given themselves Pulitzer Prizes. And this week, the House of Representatives has approved legislation that would give them something even more valuable: a new privilege, to be recognized in federal law, allowing them not to testify against those who have broken the law by giving them classified national-security intelligence. With this privilege, the media, unlike the rest of us, can now skirt a core obligation of citizenship: the duty to provide testimony when they witness crimes. Indeed, even if they aid and abet certain crimes, our lawmakers would provide them cover.

Even more ardently than most clubs, the American press circles the wagons when its members are criticized. Alas, because we get our information from the media, it matters a great deal when they are deeply self-interested. That self-interest — if not balanced by an equally effective force — cements into conventional wisdom. That is what has happened as freedom of the press has been debated over the last several years, against the backdrop of the high-profile Valerie Plame Wilson leak investigation, in which the only person who went to jail was a reporter, Judith Miller, who defied a subpoena.

Correction of the conventional wisdom is badly needed. One might have thought House Republicans, who have exhibited great concern about wartime leaks of national-defense information, would have provided it. To the contrary, they’ve gone along for the ride, ludicrously suggesting that the press is “under siege” — notwithstanding that newspapers teem with leaks, classified or not, and that Ms. Miller needn’t have gone to jail, as she held the key to her cell door the entire time (and ultimately was released when she did what all Americans are obliged to do: honor a lawful subpoena).

Here is what the media does not tell you: 99.9 percent of the time, if not more, journalists are not hampered in the slightest. Justice Department guidelines, which are rigorously enforced, forbid prosecutors and investigators from issuing subpoenas to compel them to surrender their sources. The government pays great deference — far more than the law requires — to the vital role the media plays in a functioning democracy.

There are, nevertheless, two other types of situations. They occur rarely, but when they do there is no public interest served in insulating the journalists from the obligations of citizenship.

The first is when a member of the press witnesses a crime. Let’s say a reporter happens to be standing on line in a bank when it is robbed. It would be ridiculous to suggest that the reporter’s mere status as a journalist should relieve him or her, unlike the other citizens on line, of the obligation to testify as a witness to the robbery.

The media may not like this, and the politicians and public officials who leak to them surely don’t like it, but unauthorized disclosures of information in government files is a crime. Government officials with security clearances take a solemn oath to keep classified information confidential. Leaking it is not only dishonorable; it is a crime. Moreover, even when information in government files is not classified, officials can be prosecuted — and jailed for up to ten years — under a federal statute that bars the theft of public money, property and records (Section 641 of Title 18, U.S. Code).

That is, a reporter who receives such a leak witnesses a crime every bit as serious — and sometimes more serious — than the journalist who happens to be in the bank when it is robbed. Government officials who leak information can severely compromise our national security, as we have seen only too frequently in recent years. People can die as a result of such leaks. It makes no sense to make them even more difficult than they already are to investigate.

The establishment media’s response to such arguments is bogus. They claim that “whistleblowers” who want to reveal government corruption or incompetence should be encouraged to come forward. But they already are. Government agencies have internal reporting mechanisms and vigilant, independent inspectors general who investigate claims of waste, fraud and abuse — and who ultimately report to the public without disclosing information that would harm the nation or infringe on privacy concerns. No government official has to go to the media to get the truth out, and most leakers are not good-faith whistleblowers; they tend, instead, to be disgruntled losers of internal policy arguments or insiders currying favor with the press.

One other situation is even more rare and it cries out even more forcefully against “shield” protection for journalists. It occurs when a reporter is potentially complicit in a crime. For example, a federal statute (Section 798 of Title 18, U.S. Code) expressly makes it a crime to publish signals intelligence — a category that would include, for example, the NSA’s terrorist surveillance program exposed by the New York Times in 2005. The espionage act (Section 793) more generally proscribes the disclosure of “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation[.]” This at least arguably applies to the press.

The First Amendment is not a license to violate the law. The prosecution of a journalist would be a very momentous step, one that should be approached with the greatest of caution. But questioning journalists about which government officials are leaking information that can so badly damage national security should be a no-brainer — especially during wartime and under circumstances where the enemy has already accomplished one devastating strike against the homeland and desperately seeks a reprise. It is simply mind-boggling that Congress would take what is very likely criminal behavior and turn it into immunized behavior — encouraging more top-secret disclosures and putting all of us at greater risk.

Finally, making matters even worse, there is ambiguity in the House legislation regarding who is a journalist. That means much of the new media — including the very bloggers who have been nothing short of heroic in both exposing media bias and getting facts to the American people when the mainstream media does not or will not — would likely not be protected under this legislation. Not if they are part-timers like the “Power Line” or “Little Green Footballs” bloggers … or us. In other words, those who have rolled up their sleeves to help the war effort in their spare time will receive no protection while those employed by billion-dollar media corporations who have exposed anti-terror programs will have a brand new level of protection.

The Supreme Court has wisely held that the public interest in having available the testimony of all citizens takes precedence over the journalist’s interest in protecting sources. This is as it should be. That reasonable principle is the basis of the current system. It is a system, in which, far from being under siege, reporters enjoy broad freedom to investigate and report; yet, in exceedingly rare instances, they may be questioned about crimes they may have witnessed and investigated for crimes they may have committed. It would be extremely foolish to upset that balance.

Seth Leibsohn is a fellow at the Claremont Institute. Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.

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