Flying low under the radar last Thursday was a blowup of the markup in the Senate Judiciary Committee of the “Free Flow of Information Act” a.k.a. the “reporter’s shield” law. (George Orwell’s 1984 still appears to be the favorite Democrat bill naming guide. Doubleplussungood.)
The reporter’s shield law is a dangerous attempt to make it easier for government employees to leak classified information without penalty. In the past nearly 20 years, only 19 reporters have had records subpoenaed, which tends to disprove the urgent need for this “shield” law at all, much less in the rushed manner in which Democrats are attempting to ramrod it through Congress before the People find out.
Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, has serious issues with the bill, primarily because it would allow reporters to seek de novo review by a federal judge of intentional leaks of classified materials. And judge-shopping becomes the new rage at the New York Times.
“We learned after 9/11 that good intelligence is the best way to keep our country safe,” Sessions told HUMAN EVENTS. “And that means you intercept information that will allow you to stop attacks before they occur — not just investigate afterwards. So I think that this legislation, and I do believe that we’ve had a series of releases of information that was not necessary and not right, and I do believe that this sort of empowers a news reporter to establish their own standards if they come upon classified information, and then be able to get a de novo trial before a judge. A judicial branch is not empowered and does not have as a responsibility to protect America from attack — that’s the executive branch function — they’re just to decide disputes. Cause now you’re having the judges and reporters really having considerable more power to decide what is released and what is not.”
Does the Judicial Branch of government have the expertise to rule on what should or should not be classified?
“They don’t have the expertise, perspective, or the responsibility, they’re [involved in the] adjudication of legal disputes, they don’t have the duty to protect America,” Sessions said. “For them to waltz in and to be drawn into the middle of a long, ongoing matter of genuine national security and start making decisions on that based on testimony in court is not healthy I think, and it’s contrary to our history.”
FBI Director Robert Mueller wrote a letter opposing the legislation when it was introduced last year, saying “it will undermine our ability to protect intelligence sources and methods and could seriously impede national security investigations.” Sessions asked Mueller about his current view of the legislation.
“I asked him about it [last week], and he said he stood by that statement,” Sessions said. “[Secretary of Defense Robert] Gates said the bill would ‘undermine our ability to protect national security information and intelligence sources and methods, and could seriously impede investigations of unauthorized disclosures.’ So I think the administration needs to be careful about this, because they used to be a campaign team out there attacking the Bush administration and the government, and now they are the government. Now the FBI and the Secretary of Defense work for [President Obama], the CIA works for him, and he’s got to dig into this deeper now, and his aides need to look at it more carefully, and ensure they don’t erode legitimate executive powers.”
Why the unseemly rush to get this done?
“I think that’s a good question,” Sessions said. “It’s been out there, legislation like it has been out there. I think it’s something that many of my Democrat colleagues promised during the last campaign, and they feel like they’ve got to follow through and do it.”
Sen. Chuck Schumer (D-N.Y.), a member of the Senate Judiciary Committee, was particularly in a snit when Sessions and Sen. Tom Coburn (R-Okla.) objected to actually going straight to amending the bill without opening statements.
[NOTE: Any Executive Session transcript errors and omissions mine. Edited for length.]
SEN. JEFF SESSIONS (R-Ala.): Mr. Chairman, I think we are dealing with an issue of great importance. When you’ve got people in this administration that are nationally-respected leaders who’ve expressed opposition to the bill with Sen. Feinstein, the chairman of the [Intelligence] Committee expressing grave concerns, others have concerns, I think we need to slow down and take the time to talk about the problems. I think I have an obligation to state why I think we may be overreaching here. … We need to talk about the dangers in the legislation.
SEN. TOM COBURN (R-Okla.): The question is: should the American people hear the thoughts about it before we mark it up? There’s not a filibuster going on here, Mr. Chairman, there’s genuine concern. It’s my feeling that the American people need to hear the plus side and downside to traitors to this country who intentionally leak classified information so that to have the discussion is not meant to not intentionally have votes today on the bill or amendments. I have six amendments I want to offer. But there certainly is no harm in letting the American people hear the discussion and the concern about this bill.
SEN. PATRICK LEAHY (D-Vt.): I couldn’t agree more. That’s why last week I asked if people had comments and was open to comments from anybody who wanted including you, Senator Coburn. There didn’t seem to be any comments.
SEN. CHUCK SCHUMER (D-N.Y.): … It was my understanding that we would forego opening statements and go right to amendments…
SESSIONS: I don’t recall it that way. I don’t get any sense that the well-respected people who have expressed opposition to this are in any way involved in a compromise that settles their concerns. In fact, just yesterday Director of the FBI Mueller reiterated his opposition as written.
Schumer then assured everyone that he was in meetings with Attorney General Eric Holder on this, intimating some sort of negotiation. But Schumer negotiating with Holder would be like Hillary negotiating with Bill. (Ok, a lot less hostile than that.)
Holder is one of the most politically-driven attorneys general in the history of the office — the one on a witch hunt at the CIA right now looking for someone, anyone, to prosecute for using enhanced interrogation techniques at the order of the Bush administration. How are they going to come up with a compromise if they’re both on the same side?
SCHUMER: … [Senate Intelligence Committee Chairman] Feinstein has concerns, Senator Whitehouse has concerns, and we’re going to have administration support for the specific legislation that we have. … We will get an agreement with the administration and the Justice Department who represents Muller, Fitzgerald and everybody else.
Feel better now?
Like Feinstein, Sen. Kit Bond (R-Mo.), Vice Chairman of the Senate Select Committee on Intelligence, has grave questions about the bill.
“What we should be doing is making it easier, not more difficult, to catch those who knowingly leak classified information,” Bond told HUMAN EVENTS. “Unfortunately, the shield law proposal would make it likely that the government would be forced to disclose information potentially more damaging and sensitive then the original leak. Protecting journalists and their sources is important, but we can respect the First Amendment without sacrificing the safety of our nation as we continue our fight against terrorism. Our laws must not threaten the tools our intelligence and law enforcement personnel need to help keep us safe; unfortunately, the Judiciary bill fails this critical national security test.”
The markup of the reporter shield bill in Judiciary is scheduled to resume on Thursday, September 23rd.
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