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Would Proposed Federal Shield Law Have Protected New York Times Reporter James Risen?

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Reprinted from dissenter.firedoglake.com

A proposed federal shield law that would grant journalists covered by the legislation a level of protection has passed in the Senate Judiciary Committee and moved to the full Senate. The shield law would likely protect reporters from subpoenas intended to force them to give up confidential information about their sources, but the protection national security journalists would be able to enjoy is debatable.

Aside from the fact that the law would define"covered journalists" who are "real reporters" and deliberately exclude leaks-based media organizations like WikiLeaks, a critical question is whether the proposed shield law would have protected someone like New York Times  reporter James Risen. The Justice Department has been trying to force Risen to testify in the case of former CIA officer Jeffrey Sterling. Risen, backed by other media and press freedom organizations, has been fighting government efforts that have continued under the administration of President Barack Obama.


Briefly, Sterling is charged with multiple violations of the Espionage Act, the World War I-era law the Obama Justice Department has relied upon to pursue leakers even though it was never intended to be used for that purpose.

Sterling allegedly disclosed information that included details of a classified program "intended to impede Iran's efforts to acquire or develop nuclear weapons," which was published in Times  reporter James Risen's book, State of War.  The government believes it must subpoena Risen to testify against his alleged source because it is essential to prosecuting and convicting Sterling.

Times  executive editor Jill Abramson has said the effort against Risen is detrimental to "the ongoing important work that journalists do in holding powerful institutions and the government accountable to the people." She has also expressed concern that the "process of news gathering is being criminalized" and that the Obama administration's actions are frightening potential sources.

If the proposed federal shield law passed, it would establish a process that does not currently. The mere existence of a process could have helped Risen fight the subpoena more effectively than he has been able to in the courts.

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The process the proposed federal shield law authorizes is similar to procedures courts use when hearing motions to quash a subpoena. The federal government agency would not be able to compel disclosure of information from a "covered journalist" unless the agency seeking compelled disclosure has "exhausted all reasonable alternative sources (other than a covered journalist)" to obtain the "protected information."

In a criminal investigation or prosecution, there also must be "reasonable grounds to believe that a crime has occurred," "the protected information sought is essential to the investigation or prosecution or to the defense against the prosecution" and the "Attorney General certifies that the decision to request compelled disclosure" is authorized under federal regulations.

If the "covered journalist has not established by clear and convincing evidence that disclosure of the protected information would be contrary to the public interest, taking into account both the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information and the public interest in compelling disclosure, including the extent of any harm to national security," the federal government agency would be able to force the journalist to reveal confidential information about his or her source.

What would this mean for Risen?

The government clearly believes a crime occurred--the unauthorized disclosure of national defense information by Sterling to Risen. The government also has successfully argued to an appeals court that the information is "essential" to prosecuting Sterling successfully. Attorney General Eric Holder has, logically, accepted that it is reasonable for the Justice Department to target Risen and force him to testify. The issue of whether disclosure would be "contrary to the public interest" would not outweigh what one could describe as the government's "national security interests" in the case, which the government could argue justify compelling disclosure.

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A national security exemption to "prevent terrorist activity or harm to the national security" was written into the proposed federal shield law. How might that have applied to Risen?

Kurt Wimmer, a Washington, DC media lawyer, who, according to the Reporters Committee for Freedom of the Press (RCFP), "has consulted with House and Senate staff members on draft bills as counsel to the Newspaper Association of America," told RCFP, "The way the national security exception is written in the Senate, you can only use that exception if the information that you're getting at is intended to prevent a future act of terrorism or a national security incident." He added, "Identifying a leaker of something that was published years ago, I don't think could credibly be seen as preventing a new national security incident."

It is less likely the government would have argued Risen needed to be forced to testify to prevent a terrorist attack or "national security incident" to identify who leaked the information. What is more likely is the government would argue he needed to be forced to testify to prevent "harm to the national security." Government attorneys would likely argue, by not forcing Risen to testify, a court would be making it possible for future leakers to get away with disseminating national defense information that could do harm because they now they would know they would not be identified in court if they gave information to a "covered journalist."

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Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure." He was an editor for OpEdNews.com

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