Don't Shield the Media: Prosecute the Leakers

Reporters aren’t doctors or priests, but Congress is considering raising their legal status to similar level by creating a legal “shield” for journalists to protect confidential sources. The Bush administration is lobbying hard against it.  It’s not at all clear that any “shield” is needed, but why the administration is opposing it — and the terrible weakness behind its position — is more important than the legislation itself.

Most states have laws which protect reporters’ confidential sources from the government’s (or anyone else’s) ability to discover them.  There are exceptions, of course such as the possibility that a crime might be prevented if the source is not revealed. Congress is focusing on this bill despite the fact that there are many more urgent issues the House and Senate ought to be dealing with.  In fact, there isn’t any urgency to the “shield” law at all: according to Senate sources, there have been only four subpoenas for reporters’ sources since 2001. And at least two of those were related to the prosecution of I. Lewis “Scooter” Libby, Vice President Cheney’s former chief of staff in the Valerie Plame non-leak prosecution, to which we shall return in a moment.

The White House strongly opposes this bill chiefly because it would make the criminal prosecution of leakers much harder. Which is undoubtedly true. But the Bush administration is in no position to levy that criticism for one depressing reason: this administration doesn’t prosecute the leakers who truly damage national security.

In the past three years there have been leaks of top-secret information to two major newspapers — the New York Times and the Washington Post — which have, despite the pleas of the administration published the top-secret information in detail.

The CIA’s secret prisons where terrorist suspects were held and interrogated — located were in Eastern Europe and Asia Minor, among other places — were top secret. Someone leaked the secret prison program and some of the locations to Washington Post reporter Dana Priest.  Over administration objections, the leaks (but not the prison locations) were published by the Post on November 2, 2005.  The program was both legal and secret. It was published and thus damaged.  Some of the nations which had hosted the secret prisons reportedly closed them. 

But the Bush administration didn’t investigate or prosecute the leakers.  One CIA employee was reportedly fired but nobody was charged with the crime.

The most high-profile of these stories is the now-famous “terrorist surveillance program” run by the National Security Administration which has reportedly intercepted thousands of communications between terrorists and their sympathizers or compatriots within the United States.  The NSA program — like the CIA secret prisons — was top-secret.  It was also perfectly legal.  Some person or persons leaked the story to NY Times reporter James Risen.  When the administration asked the Times to not publish the story they held if for a year: time which Risen spent writing a book detailing it. 

The Times, seizing the mantle previously worn by industrial giants, became the modern war profiteer.  It published a front-page story on the NSA program on December 16, 2005, creating a huge media buzz for Risen’s book which was published about two weeks later and sold quite well.

According to intelligence community sources, the publication of the leak damaged the program significantly because the terrorists — and their financers, sympathizers and other supporters — changed the ways in which they communicated making intercepting those communications much more difficult. 

And the Bush administration failed to find and prosecute the leakers.  An investigation was begun in late December 2005 and hasn’t been heard of since.

A month later, someone again spilled the top-secret beans to the New York Times, this time about the Belgian “SWIFT” consortium, a group of banking houses that cooperated in US tracing terrorist financing.  Again, the administration asked that the leak not be published and once again it was, this time on January 23, 2006.  The Belgian government — in step with the European Union’s view of the United States — was first forced to end cooperation (and may have resumed it under more limited conditions.)

And — do I even need to write this sentence? — the Bush administration didn’t investigate or prosecute the leakers. 

It is beyond parody that the only person prosecuted in a leak-related case is poor Scooter Libby.  Libby, of course, didn’t even leak CIA glam gal Valerie Plame’s CIA connection. Then Deputy Secretary of State Richard Armitage did.  Libby lied to the grand jury about which reporter he talked to about which rumor. 

You cannot expect people to follow a law you don’t enforce.  Under both Alberto Gonzales and now Michael Mukasey the United States Department of Justice has abandoned its duty to prosecute leakers of classified information.  Why, then, should anyone take at all seriously the White House opposition to the shield law which the White House insists will thwart prosecutions?

I may have a different view of these matters than most journalists.  As an Air Force officer and later as a deputy undersecretary of defense I have had several security clearances, including some very fancy “tickets” to the highest levels of classified information.  I’m sure that there are things in my brain’s attic that are still classified.  I will never speak or write of them.

At least twice since I became a journalist, information has been accidentally or purposefully given to me that I knew or suspected was classified.  I have never published my country’s secrets and don’t intend to start now.  Almost four decades ago I swore an oath to defend this country at the risk of my life, and I am still bound by that oath.

So, despite the lack of credibility the White House has on this issue, I still believe the reporters’ shield law should not be enacted as it now stands.  The list of problems with the legislation is too long to analyze here but a couple are worth mentioning.

First, before a reporter could be compelled to disclose his source, the government would have to demonstrate to a judge that the leaker had lawful access to the information.  How, pray, can you do this when you don’t know who the leaker is? 

Second, the bill defines the “covered” people who are afforded the new legal privilege so broadly that some terrorist “stringers” — photographers, etc. — hired by al-Jazeera in Iraq could be protected.  It covers anyone engaged in gathering, preparing, collecting, photographing, writing, editing, reporting or publishing news or information on local, national or international events.   

In an April 24 letter to Speaker Pelosi and Senate Majority Leader Reid, Attorney General Mukasey and Director of National Intelligence McConnell said this overly-broad definition, “…effectively provides a safe haven for foreign spies and terrorists who engage in some trappings of journalism but are not known to be part of a designated terrorist organization or known to be agents of a foreign power — no matter how closely linked they may be to terrorist or other criminal activity.” It’s a very bad bill. But the Bush administration’s unwillingness to punish leakers is just as bad, and in some ways worse.