Journalists shouldn't be prosecuted for just doing their jobs and informing the public. It's past time to enshrine that principle with a federal shield law to protect reporters and their confidential sources.
If there were any question a law is needed, the U.S. Justice Department removed all doubt by overreaching in two recent leak investigations.
First, the Associated Press disclosed that federal prosecutors had seized the call logs from more than 20 of its phone lines, looking for leads on who leaked classified details about a CIA operation that targeted terrorist bomb makers. More than 50 news organizations leaped to the AP's defense, denouncing the move as a threat to press freedom.
Then, court papers revealed that the FBI had obtained a search warrant to read the private emails of Fox News reporter James Rosen as part of gathering evidence against a State Department contractor accused of sharing intelligence that North Korea would likely conduct another nuclear test if the United Nations condemned prior ones. The warrant suggested that Rosen himself could be prosecuted under the 1917 Espionage Act, which has never been used against a reporter.
Amid the furor, President Barack Obama again pledged his support for a shield law, saying he understood the importance of journalists watching over the government.
Now he has to show it wasn't just a PR move or a sop to the press corps. It'd be helpful if he actually spent some of his political capital to get the bill passed.
S. 987, the Free Flow of Information Act of 2013, was introduced May 16 by Sen. Charles Schumer, a New York Democrat, and sits in the Senate Judiciary Committee. So far, it has 16 co-sponsors four Republicans and 12 Democrats, including Sen. Barbara Boxer of California, but not Judiciary Committee Chairman Patrick Leahy. That does not bode well for eventual passage. A similar bill died in the Senate in 2009 after the uproar over the WikiLeaks disclosures of secret military reports and diplomatic cables.
The bill would require law enforcement to try every other avenue to obtain information before seeking judicial approval to seize records from journalists. Reporters could appeal to federal judges, who would have to balance the government's need for information against the public interest in newsgathering. California and 48 other states already have similar protections for reporters, either through laws or court decisions.
But there should be no illusions that even if S. 987 does become law, it would protect reporters in every case. Schumer's bill specifically exempts cases involving terrorism or threats to national security.
In the real world, the safeguard is for prosecutors to be very cautious in going after reporters and their sources. During the "war on terror," the Obama administration has been far too aggressive.
Is there much doubt that if Edward Snowden had not outed himself as the leaker on the government's secret surveillance programs, Attorney General Eric Holder would not be going after the journalists who received Snowden's information?
One can argue whether Snowden is a principled hero or a reckless publicity seeker jeopardizing national security.
But there can be no debate about the chilling effect that occurs when federal prosecutors go after journalists for just doing their jobs. That's dangerous for democracy, which is why Congress must pass a shield law.