Just a few weeks after New York Times reporter Judith Miller was released from jail, she and the U.S. Justice Department again squared off, this time at an Oct. 19 Senate Judiciary Committee hearing on a proposed law that could have saved her from incarceration - a federal reporter's privilege.
Miller and other journalists spoke strongly in favor of legislation to protect journalists from compelled disclosure of sources and materials in most, but not all, cases, while Chuck Rosenberg, U.S. attorney for the Southern District of Texas who represented the Justice Department, reiterated the government's opposition to the idea.
"What is broken about the way we are handling matters involving subpoenas to the media?" he asked. "We rarely issue subpoenas to the media seeking information about confidential sources, and when we do, it is only after painstakingly careful review and meticulous adherence to our internal guidelines."
The actual numbers, however, tell a different story. Although Rosenberg claimed the Justice Department has sought only 12 subpoenas seeking confidential sources from the media since 1991, the Justice Department's own numbers prove that number false.
According to a December 2001 report from the Department of Justice, the agency said it had authorized 88 subpoenas of the news media since 1991. Of those 88, 17 sought information that could identify a reporter's source or source material. In eight of those 17, the department did not negotiate with the media prior to filing the subpoena, violating its own guidelines.
And since 2001, the department has approved subpoenas seeking confidential sources from at least seven reporters in high-profile cases.
Rosenberg also overstated the effect the proposed bill would have on law enforcement, according to Kurt Wimmer of Covington & Burling.
"The Department claims that the bill would (1) prevent them from issuing subpoenas without going to court; (2) that this 'mini trial' would require them to lay out all of their investigative evidence; and (3) that this proceeding would have to occur in open court. Each of these three claims is simply incorrect," Wimmer wrote in an e-mail.
"In practice, the [proposed privilege] would set up a straightforward motion to quash procedure that is familiar in everyday Federal court practice," Wimmer added.
Rosenberg's oral and written testimony quashed any hope that the Justice Department had warmed to the possibility of a federal shield law. Over the summer, the department opposed an earlier version of the bill, the "Free Flow of Information Act of 2005," but its authors, Indiana Republicans Sen. Richard Lugar and Rep. Mike Pence, among others, changed the measure to allow for compelling the disclosure of a source's identity if it is necessary to prevent "imminent and actual harm to national security" and the the harm to be prevented is outweighed by the "public interest in protecting the free flow of information."
Thirty-one states and the District of Columbia have shield laws and nearly every state has at least some court-recognized qualified privilege. However, the federal law has been murky since the 1972 U.S. Supreme Court decision in Branzburg v. Hayes that journalists have no First Amendment privilege to withhold confidential sources from a grand jury investigation. Now, there are no comprehensive federal guidelines since many of the circuits are split on the interpretation of that decision.
The Justice Department has guidelines limiting when and how federal prosecutors may subpoena journalists, their notes or their phone records, and those guidelines should be enough to protect the media, Rosenberg said.
Former U.S. Attorney Joseph diGenova told the Senate panel to consider codifying the Justice Department guidelines for subpoenaing the media.
"Given the purported success of these guidelines, Congress should enact them into law," diGenova said. …