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May 02, 2008


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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.

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