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Protecting Whistleblowers since 1977

Reporter "Shield" Laws: All the News You Never Would've Heard

Jesselyn Radack, October 02, 2009

This post was written by GAP Homeland Security Director Jesselyn Radack for her Daily Kos Blog.

A reporter shield law has gone further than any previous attempts. A proposal was overwhelmingly passed through the House of Representatives and the Senate Judiciary Committee during the 110th Congress and it has been reintroduced this session.

But President Obama just gave Congress and various media representatives a draft of a propsed reporter shield law that toughens, not softens, its position on controversial national security sections.  If reporters can be forced to reveal their sources, here are a number of stories you would have never heard about: torture policy, Abu Ghraib, rendition, warrantless wiretapping, perverted Justice Department OLC memos . . . just to name a few.  See generally http://www.nytimes.com/....

During his campaign, President Obama pledged to support shield legislation.  His proposed reporter "shield" law is supposedly meant to protect journalists from having to disclose their confidential sources.  But let's be frank. Under the Administration's language, a reporter could be compelled to reveal his or her sources if public disclosure of the source's information

caused or [was] reasonably likely to cause significant and articulable harm to national security.

This is no standard at all.  It's so broad that it would encompass all the major scandals of the past nine years: torture, secret surveillance, the rendition program.

Obama proposes to scrap a "balalncing test" (damage to national security vs. the public's right to know) in favor of a "reasonably likely to cause damage" test.

Guess what?  The revelations at Abu Ghraib were reasonably likely to cause damage to the treatment of detainees--as they should have, because the U.S. should not torture.  The revelations of the Justice Department Office of Legal Counsel (OLC) memos were reasonably likely to cause damage to the nation's top law enforcement agency--as they should have--because the Justice Department should not be the architects of torture and how to get away with it.

The revelations I made in the case of "American Taliban" John Walker Lindh were reasonably likely to, and did, derail the prosecution, which is as it should have been, because it was rife with government misconduct, from torture, to improper interrogation, to destroyed evidence.

Obama's proposal would also lower the standard for someone seeking a reporter's source in a civil case.  All that would be needed are

reasonable grounds to believe that the information sought is essential to the resolution of the matter.

These are cases in which NO national security interests or criminal prosecutions are involved.

Reporters must be able to protect their sources unless the source committed a crime (as in the case of Bob Novak's sources, who violated the CIA Identities Protection Program law.)  Otherwise, whistleblowers will continue to be the target of bogus "leak investigations," and the reporters who pledged to protect them will become witnesses against them.