The Department of Justice was a last minute no-show yesterday as the Senate Judiciary Committee convened to examine the merits of implementing a federal reporters-shield law despite the department’s strong objection to the proposed legislation.
Several senators, including Chairman Arlen Specter (R-Pa.), expressed disappointment about Deputy Attorney General James B. Comey’s sudden cancellation, as many committee members wanted to question him about his written testimony about the Free Flow of Information Act of 2005.
“I very much regret that the Department if Justice is not testifying,” said Sen. Dianne FeinsteinDianne FeinsteinA guide to the committees: Senate Dem: Trump's China trademark looks like a quid pro quo Senate advances Trump's Commerce pick MORE (D-Calif.), who called Comey’s views “a rather serious indictment” of the measure, introduced by Sens. Richard Lugar (R-Ind.) and Chris Dodd (D-Conn.).
John Nowacki, a Justice Department spokesman, said Comey’s absence was caused by his meeting with the House Republican leadership about the USA Patriot Act, which was scheduled at the same time as the hearing.
Feinstein and Sen. Charles SchumerCharles SchumerHow the candidates for DNC chair stack up ahead of Saturday's vote DNC candidate Harrison drops out, backs Perez for chairman Ellison holds edge in DNC race survey MORE (D-N.Y.) suggested scheduling another hearing to allow the committee to discuss the Bush administration’s objections. Specter replied that the committee will make an effort but that it might be difficult, given the busy legislative schedule ahead.
The Senate legislation, which has garnered a bipartisan list of 10 co-sponsors, would enhance journalists’ ability to protect confidential sources. The legislation also would “set national standards for subpoenas issued to reporters by an entity or employee of the federal government,” according to Lugar’s statement.
Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) have introduced identical legislation in the House and have 52 co-sponsors. Both Pence and Lugar stressed that the bills had less to do with protecting reporters and more to do with protecting whistle-blowers and the public interest.
In his written statement, Comey raised concern over the implications a shield law could have for national security and criminal investigations.
“This bill is bad public policy primarily because it would broadly bar the government from obtaining information about media sources, even in the most urgent of circumstances affecting the public’s health or safety or national security,” he stated.
He added, “The bill would seriously jeopardize traditional notions of grand-jury secrecy and unnecessarily delay the completion of criminal investigations.”
Both versions of the bill underwent revision a few days before the hearing to include language that stipulated a reporter would not be required to reveal a source unless “the disclosed identity of the source is necessary to prevent imminent and actual harm to national security.”
However, Feinstein, a member of the Select Committee on Intelligence, criticized the new provision as “extraordinarily broad.”
Currently, 31 states and the District of Columbia have statutes that protect reporters from having to testify or disclose sources in court; currently no similar federal law dictates when a reporter can or cannot be subpoenaed.
Comey’s statement also asserted that the bills would “overrule the Supreme Court decision in Branzburg v. Hayes … which held that reporters have no privilege, qualified or otherwise, to withhold information from a grand jury.”
Sen. Russ Feingold (D-Wis.) said, “Branzburg stands for the proposition that the protection of the identity of anonymous sources is not required under the First Amendment … but many judges ruling in these cases have invited Congress to legislate.”
He added, “This is an area where Congress has the power, and the responsibility, to set out the parameters under which testimony of this kind can be compelled.”
Time magazine reporter Matthew Cooper and New York Times columnist William Safire were among journalists to testify before the committee.
“As a working journalist, I’d like to know better what promises I can legally make and which ones I can’t,” Cooper said. “This would benefit me as a reporter, but again it would also benefit those who talk to reporters and the public’s right to be informed.”
Cooper was nearly jailed for his refusal to testify to the grand jury about his conversations with a confidential source about Valerie Plame, the CIA undercover officer who was unmasked in a 2002 column by columnist Robert Novak. Cooper was released from his confidentiality agreement by his source, White House Deputy Chief of Staff Karl Rove, allowing him to testify, but Miller was sent to jail.