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April 29, 2008

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John C

Mukasey is right, in part (as you imply) for the wrong reasons. A shield law guaranteeing anonymity would offer sources increased license to lie, smear enemies, plant stories, and break the law. Further, it would offer government officials (primarily executive officials) an indirect testimonial privilege by virtue of protecting their identities. See the Scooter Libby affair for a good example of a source that probably would be protected by such a law. Do we really want to offer such "sources" a blanket assurance of anonymity? The media already has a problem with what Jack Shafer has called "source maintenance," which essentially means that reporters already have a problem with insuring that their sources are accurate, complete, and worthy of anonymity. A shield law would only further degrade the incentive for proper source maintenance.

Further, you state:

To borrow the words of another Administration insider, there are things 'we don't know we don't know.' And its likely to remain that way until a federal shield becomes law.

The implication of this statement is that the passage of a shield law would be a useful way to empirically measure the effect a shield law would have on the quantity (and, presumably, "quality") of anonymous sourcing. I don't think that is a particularly compelling reason to support the law - isn't the burden on proponents of a proposed measure to show empirically, at least in part, the salutary effects of the proposal prior to passage? Saying essentially that "we should pass it, and then we'll find out if it's going to work" is passing the buck in the worst way.

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