A media shield's appeal is understandable. A free press that informs the public and holds government accountable is a bedrock principle of our society and one that we are committed to defend. But creating a new privilege for journalists to withhold the identity of confidential sources, as Congress is considering, would do more harm than good.
In the real world, such a privilege would adversely affect our ability to keep the country safe from terrorists and other criminals. This impact has led the heads of all federal government agencies in the intelligence community to oppose the proposed legislation. While the media shield bill includes "exceptions" for national security and serious crimes, they are inadequate. First, they are largely prospective and would not apply after a crime has been committed. Second, we would still have to produce classified and sensitive information in order to compel reporters to disclose their sources. Third, even if we meet the bill's exacting standard, judges could still prevent us from obtaining critical source information. This would undermine, if not eviscerate, the government's ability to obtain information that could be necessary to protect national security, investigate acts of terrorism, or identify leakers of classified information.
These defects are compounded by the fact that a shield would apply to a virtually limitless class of people. Indeed, the bill's definition of journalism is so broad that essentially anyone who regularly disseminates information of public interest would qualify—as would his or her supervisor, employer, parent company, subsidiary, or affiliate.
Highly classified. Two real-world examples, cited by supporters of the legislation, underscore the government's concerns about this legislation. The existence of a highly classified program that allowed us to monitor the finances of terrorist organizations and their backers was leaked to reporters who then ran a story detailing its operations. This disclosure compromised one of our most valuable programs and made harder our efforts to track terrorist financing. There is no credible allegation that the program violated U.S. law, and the newspaper's own ombudsman later concluded that the article should not have been published.
In another case, the government developed a plan to go to court, freeze the assets, and search the premises of two nonprofit organizations suspected of supporting terrorists. Information about the plan was leaked to two reporters, who called the groups seeking comment on the impending searches and asset freezes—alerting them to the government's actions and potentially threatening the safety of the agents executing the search warrants, to say nothing of the harm done to the investigation. The reporters refused to identify their sources and challenged efforts by the government to obtain phone company records indicating who might have leaked the information.
Such cases, in which confidential sources broke the law by leaking classified or other sensitive information, with serious consequences for national security and law enforcement, are telling. Media advocates evidently believe that such leaks ought to and will be protected by a shield law. One of the goals of the legislation, we are told, is to ensure that sources will feel free to talk to reporters—another way of saying that it is designed to ensure that we will have more such leaks. The sources in these cases broke the law in order to reveal information that showed not that the government was acting improperly but that it was doing its job appropriately and effectively. Of course, the fact that these and other leaks made their way into the news media in the absence of a shield law makes them odd examples to cite as evidence for its necessity.
This is a complex issue involving some of our most cherished values and our most important responsibilities as a government. The balance between such interests is not always clear and can lead people of good faith to disagree. But the proposed bill overly restricts the government's ability to obtain information critical to protecting national security and enforcing laws.