I'm all for a shield law to protect journalists and their sources from government prosecutors. I hope Congress passes one. But I don't have lots of faith that the ideas under consideration in Congress or any law can protect journalists adequately.
This is one of those areas where custom carries more weight than statute, the custom being the general good sense of prosecutors not to go after reporters for their information. For the most part prosecutors -- and by that I mean everyone from county attorneys on up--have refrained from going after reporters, including the notable and obvious exception of the Obama Justice Department. Yes, there are cases where prosecutors have gone subpoena-happy, from the BALCO steroids case to the Aurora shooting to the CIA leak case, where I was caught up in the maelstrom. But, generally, prosecutors don't pursue reporters even when they can. This unspoken compact began to become undone during the Bush administration, and, of course, it has unraveled during the Obama years as the national-security state has expanded.
This is something I know a bit about, having been subpoenaed in the CIA leak case. In 2003, I wrote a piece for Time, where I covered the White House, about how Bush administration officials were trashing Valerie Plame, the CIA operative whose husband was sent by the agency to investigate claims that Saddam Hussein was seeking to purchase uranium from Africa. Leaking Plame's identity was potentially a crime, and I was threatened with imprisonment for contempt of court for not turning over my sources. The case went all the way to the Supreme Court where it was declined. I've described my experiences at some length here, and here.
The important thing from my case that's relevant to the current rash of subpoenas is twofold. First, it represents an all-too-familiar and dramatic escalation of federal intrusion into the work of journalism under the guise of national security. At a time of more or less permanent war, the federal government has shown little of its former hesitance to pursue journalists. The second point is that the government tends to win--not always, but pretty much.
Recently, the government got the Associated Press' phone records and they got James Rosen's private e-mails. In the end of the CIA leak case, the prosecutors heard from reporters including myself, Walter Pincus, Tim Russert, Robert Novak, Bob Woodward, Glenn Frankel, and Judith Miller. Each of us took our own path to the witness stand -- my sources offered permission to speak -- but no one was able to tell the prosecutor to screw off. We fought the law and the law won.
That's because the law is on the side of prosecutors. In 1972, the Supreme Court ruled in Branzburg v. Hayes that there's no constitutional right for reporters to protect their sources. The case involved a Kentucky reporter covering the marijuana trade. Prosecutors wanted to know what he knew. The ruling was a split decision, and Justice Lewis Powell's opinion had a degree of ambiguity that allowed First Amendment lawyers to dine out on it for many years.
Still, the ruling was the ruling. And it being the Woodward-and-Bernstein heyday when journalists commanded more respect, states responded by giving reporters a range of protections either through laws or judicial rulings. There was no push for a federal shield law like there is now, in part because First Amendment advocates, including the newspaper industry, saw it as a knave-like concession of the journalist's constitutional claim. Better to fight another day with the Supreme Court rather than accept a skimpy statute. For its part, the Nixon (!) Justice Department issued more-or-less reasonable guidelines for when prosecutors should subpoena journalists. When John Mitchell is the voice of reason, you're in trouble. (By the way, ironically, James Rosen has written a voluminous and interesting book on Mitchell. If you want to help him, that's surely one way.)
Here's the thing to keep in mind: Whether in Wichita or Washington, prosecutors did not use theBranzburg decision to go crazy subpoenaing reporters. That's not shocking if you think about it. Prosecutors are often aspiring politicians and they recognized in the early 1970s that getting into fights with people who buy ink by the barrel--to use the old and now quaint adage--was not a great way to get ahead. News organizations raised a stink and often didn't comply, altering the cost-benefit analysis. Again, I don't mean to suggest that this was some golden period for press freedom. There was more than enough business to keep my former attorneys, the great Floyd Abrams and Ted Olson, busy. But in general, reporters faced more of a threat from libel cases than they did government subpoenas.
The need for a federal shield law became obvious during the CIA leak case when even the most stalwart First Amendment advocates had to concede that no foreseeable Supreme Court would enshrine a right to protect sources, putting it on par with, say, the husband-wife or clergy-parishioner relationship.
In my case, I might have had some rights to resist government prosecution at the state level. But unfortunately for me, I was in federal court where I had no such claim--despite the valiant efforts of my lawyers to make a case that common law and later Supreme Court rulings expanding confidentiality rights for the likes of social workers gave me some protection. I got laughed out of federal District Court and in the second highest court in the land, the D.C. Circuit Court of Appeals, where even the liberal Judge David Tatel ruled that I had to testify, albeit while allowing that in other cases journalists might have some protection. This was apparent even during the appeals hearing where the judges were merciless with Abrams, who was representing me and Miller, as well as Time, Inc. During the hearing I jotted down the phrase: Je suis fucked.
The current shield law being considered by Congress has lots of national-security exceptions and probably wouldn't have helped me or the current subjects, the AP and James Rosen of Fox News. It's better than nothing from where I sit, but it also means that no court will ever grant unconditional protection to reporters to hide their sources. Prosecutors and others are always going to have the opportunity to persuade a court that national security overrides First Amendment issues. The best we can count on is that prosecutors will use their powers with discretion, especially since in most national security cases they wind up not prosecuting for any leak itself but for false statements to the FBI. That's what happened in the CIA leak case where, it appears, that the special counsel, Patrick Fitzgerald, learned quite early who leaked Plame's identity but spent most of his efforts going after perjury and obstruction prosecution against Scooter Libby, Vice President Dick Cheney's chief of staff.
Would that the Obama Justice Department showed more restraint. It's true that when the leak is the crime, there's a compelling logic to go after reporters, as Mike Kinsley has noted. But if you're not going to prosecute the leak, what's the point of traipsing over confidential source protection for a (relatively) measly perjury rap?
Inevitably, prosecutors have to seek a balance. In the case of James Rosen, even if you grant that the leak of North Korean nuclear-testing information was a huge deal, and you imagine that it may have been dependent on human intelligence in Pyongyang and you fear its revelation led to us having to roll up networks or even harm coming to sources, you can see the fervor with which DOJ, along with the CIA and the rest of the intelligence community, would want to go after such a leak.
But from what we've heard about the case, it's hard to see why you'd need to subpoena the reporters e-mails and phone records. The government already has extensive rights to look over the documents of employees with high security clearances. If you have their records, do you really need the Fox ones? Even if you do, is it worth it? For a long time, prosecutors answered the question "no" -- not because they were saintly but because it was in their self interest, and ours.
For a twist on the AP case, see the great Walter Pincus here. Don't agree with him, but it's hard to argue with him, too.