If you parse the legalese in the CIA-leak investigation, maybe The New York Time’s Judith Miller should be in jail. But the outcome, with a representative of the nation’s pre-eminent newspaper locked up for a story she reported on but never wrote, is ridiculous and embarrassing.
There is a preventative for this nonsense — a federal shield law — and one is before Congress now, the Free Flow of Information Act. The only obstacles to passage are institutional inertia and the Bush administration.
In written testimony, Deputy Attorney General James Comey told the Senate Judiciary Committee, "The bill would create serious impediments to the department’s ability to effectively enforce the law and fight terrorism." Bunk. National security and terrorism have become the Bush administration’s tiresome all-purpose rationalizations for telling Congress, the courts and the press to butt out of its business.
The bill, by Indiana Republicans Sen. Richard Lugar and Rep. Mike Pence, a pair of common-sense conservatives, carves out an exception in the shield for national security, and the bill itself closely tracks existing Justice Department guidelines for subpoenaing reporters: a serious crime or civil case has to be at issue; their testimony must be vital to resolving the case; and the information can be obtained no other way.
A shield law would hardly be a novel precedent: 31 states have them and in another 17 states reporters are protected by case law. Comey argues that states don’t deal with classified information as the federal government does; all the more reason to hold the feds to more exacting scrutiny.
The problem of legislative inertia is more difficult. In one five-year period, Congress considered and never passed 99 shield bills. Lawmakers might want to factor two things into their thinking. Whatever you think of individual reporters, a shield law protects not them but an institution, the press, that is singled out for protection in the Constitution.
And then there’s this: Are you comfortable with the idea of the United States being mentioned in the same breath with other countries — Iran and Cuba — that jail journalists? Sure, it’s a fallacious comparison, but it’s one our critics abroad are making.