by Randolph T. Holhut
American Reporter Correspondent
October 19, 2007
FEDERAL SHIELD LAW GIVES PRESS WATCHDOGS MORE BITE
DUMMERSTON, Vt. -- The current Administration in the White House has taken secrecy to unprecedented levels.
President Bush has expanded the executive branch's power to classify information for reasons of national security and has made it more difficult to for Americans to use the Freedom of Information Act to see what our elected officials are doing.
Secrecy is the enemy of democracy. It is how the unscrupulous prefer to rule. The less that the people know, the better. Congress has done little to crack this wall of secrecy. Congressional oversight of the executive branch is almost non-existent.
When you think of some of the worst actions of the Bush Administration over the past six years - from Abu Ghraib to warrantless wiretapping to secret CIA torture sites to shoddy conditions at military hospitals - it was the press, and not Congress, who uncovered these stories and pushed them to the forefront.
But journalists have come under increasing attack for reporting these stories. Many of them originated from whistleblowers and confidential sources who needed their identities protected out of fear of retribution.
Over the last three years, more than 40 reporters and media companies have been subpoenaed or questioned - in criminal and civil cases in federal court - about confidential sources and the information those sources provided. Too often, civil litigants and prosecutors are going after reporters as the first step, rather than the last resort, in an investigation.
Forcing reporters to disclose their sources and other information obtained in confidence undermines journalism. In the words of the late Supreme Court Justice Potter Stewart, "When neither the reporter nor his source can rely on the shield of confidentiality against unrestrained use of the grand jury's subpoena power, valuable information will not be published and the public dialogue will inevitably be impoverished."
While 33 states have media shield statutes and 16 other states have judicial precedents that protect journalist-source relationships, there is no federal law that does likewise. That is why Congress is considering a bill that would protect the right of reporters to shield the confidentiality of their sources in most federal court cases. The only exception would be if the information is needed to prevent acts of terrorism or if the information would harm national security.
Even with that caveat, the Bush Administration strongly opposes this bill. The White House, as well as the Justice Department and Office of the Director of National Intelligence, all claim that such legislation would encourage leaks of classified information and limit the government's ability to combat threats to national security.
It appears that the Administration is not so much concerned about national security as it is concerned about maintaining its stranglehold on information. Secrecy allows the Administration to hand out no-bid contracts to political allies. It allows them to skirt the laws regarding domestic surveillance and torture. It allows them free rein to do as they please without accountability.
A free and independent press is the only effective check on government power. That is why the Administration and its conservative allies have gone out of their way to undermine the work of reporters who uncovered official wrongdoing and malfeasance.
This week, the House voted 398-21 to approve The Free Flow of Information Act. A similar bill cleared the Senate Judiciary Committee earlier this month, but it is not certain whether the full Senate will take up the bill before the current legislative year ends.
A federal shield law would set a clear standard for when testimony and information can be sought from reporters. This, in turn, would also strengthen state laws already in force. That's why an alliance of more than 40 media companies and organizations support this bill.
At a time when too many of our elected officials are unwilling to confront the increasingly unchecked power of the executive branch, it is up to the press to the job. This bill is not perfect, but it would protect the watchdog role of journalists and protect the people's right to know. Without it, democracy withers and dies.
Randolph T. Holhut has been a journalist in New England for more than 25 years. He edited "The George Seldes Reader" (Barricade Books). He can be reached at firstname.lastname@example.org.