Thoughts on the Free Flow of Information Act - Part II

Lets assume the Free Flow of Information Act, the proposed reporter’s shield law I blogged about on Tuesday, would lead to greater public disclosure of government wrongdoing. That alone might explain why AG Michael Mukasey opposes the law. But what about his claim that a reporter’s shield would place vital information beyond the reach of federal prosecutors and "core national security authorities." We've heard the "war on terrorism" cry before, so Mukasey’s claim deserves a closer look.

First, its important to understand what the bill does not do. It does not withhold essential information from any federal agent. In fact, I’d call it an exaggeration to say the bill guarantees confidentiality at all. It only requires investigating agents to look elsewhere for essential information before a reporter can be subpoenaed. They can in fact compel disclosure if that initial search bears no fruit. Requiring the feds to play by the rules is not the same as hiding the ball.

Second, important limitations narrow the reporter’s protection. The right of confidentiality is not absolute if the reporter commits a crime or witnesses a crime, and it doesn't apply at all to information that would help prevent the most serious crimes.  See section 4.

What about national security? Confidentiality does not apply to information "a federal court has found by a preponderance of the evidence would assist in preventing an act of terrorism." Period. Doesn’t apply. Nor does it apply when a "significant and articulable harm to national security" outweighs the public interest in maintaining the free flow of information. See section 5. The very act of balancing interests presumes the former would trump the latter in necessary circumstances.

Perhaps its the "preponderance of the evidence" standard that gives Mukasey pause, or the requirement for showing a "significant and articulable harm to national security." But isn’t any threat to national security "significant," so long as it is credible? And doesn’t the "preponderance of the evidence" standard simply mean that the information is more likely than not to establish cause? Here that means cause to believe the information would "assist" federal agents in doing their job. Assist: to give aid, to advance in some degree. Is this what’s so objectionable? It might be different if agents had to show that the desired information was "necessary," "essential" or even "highly likely" to benefit national security. But they don’t. And there is no doubt that federal courts already know how to protect legitimate executive secrets when conducting a disclosure hearing; think in-camera review.

Besides, government agents wouldn’t have to worry about any of this if the information they want would help prevent a specific case of death, kidnapping or serious bodily harm. The proposed statute doesn’t recognize a right to confidentiality in those circumstances. Again, section 4. And isn’t death, kidnapping and bodily harm what most terrorist acts and threats to national security involve?

Maybe the burden of accountability troubles Mukasey, the very idea of having to appear before a federal court and articulate a reason for disclosure. But to borrow words from the late Justice Thurgood Marshall, "it is not burdensome to give reasons where reasons exist." The Administration, just like reporters, must operate within the bounds of the law, and ever since Marbury v. Madison that’s meant submitting to the jurisdiction of a competent court. If there’s a case for compelling disclosure, surely the government can make it, and I don’t see how the Free Flow of Information Act would stand in its way.

There’s more . . . but that’s for another day.

-Kathleen A. Bergin

Comments

[John C]

Professor Bergin,

You state that:

First, its important to understand what the bill does not do. It does not withhold essential information from any federal agent. In fact, I’d call it an exaggeration to say the bill guarantees confidentiality at all. It only requires investigating agents to look elsewhere for essential information before a reporter can be subpoenaed. They can in fact compel disclosure if that initial search bears no fruit. Requiring the feds to play by the rules is not the same as hiding the ball.

Is it your opinion, then, that the FFIA is essentially the same as the Department of Justice Guidelines that federal law enforcement agents currently are subject to when issuing a subpoena to the media? Or does the FFIA have broader coverage or a signficantly different burden to compel disclosure?

[Kathy Bergin]

There are textual difference between the DOJ Guidelines and the proposed FFIA, but no matter how the FFIA is ultimately interpreted, there's concern that the DOJ isn't even abiding by its own rules. At least this is what some DOJ officials have stated to the media, and was one of the claims Judith Miller made against contempt charges.

Another problem is that the DOJ Guidelines do not create enforceable rights. Failure to abide by them merely subjects an investigator to "administrative reprimand or other appropriate disciplinary action."
If I recall correctly, this was another problem in the Miller case.

Kathy Bergin

[John C]

I guess I don't see why the fact that the DOJ guidelines don't create enforceable rights (or that the DOJ isn't abiding by them, which we don't know is necessarily true) should be a factor in deciding whether the FFIA is a good idea. I don't think FFIA proponents have yet made out the basic case - that FFIA would significantly improve the number and "quality" of anonymous sourcing. FFIA proponents have not shown that there are a signficant number of individuals who would like to talk anonymously to reporters, but don't because of the lack of a shield law.

Rather, FFIA opponents can show 25 + years since Branzburg where a federal shield law did not exist, and yet anonymous sourcing was (and still is) rampant. And abused. Again, media observers and critics (Glenn Greenwald and Jack Shafer come immediately to mind, although there are others) have made clear that modern mainstream media reports have increasingly offered grants of anonymity to executive branch sources who use that anonymity to lie, smear, plant dubious stories, and shape the debate in ways favorable to the government.

Why should we pass a federal shield law like FFIA that would act as an incentive for this type of behavior? The burden is on the proponents of FFIA, and no one has been able to answer that question, I think.