Leaker law and our enemies

Frank Gaffney:

There is something unique about what has come to be called the War on Terror. In this conflict, as the U.S. government struggles to defeat the enemy and keep our people safe, it is up against not only those who overtly and unambiguously seek to destroy us. It also confronts those who are prepared to reveal classified information and programs, even when doing so makes it harder to vanquish our foes and protect this country.

The latter fall into four principal categories:

* Some call themselves “journalists” who work for traditional news organizations, notably the New York Times. On occasion, they win Pulitzer Prizes for compromising the Nation’s secrets.

* Some are members of what has come to be called the “new media” or “alternative media.” Most traditional journalists detest the idea that their trade is being practiced by people who find in outlets like on-line publications, the Blogosphere, YouTube and FaceBook vehicles to disseminate information worldwide and instantaneously. But the reach of the world-wide web is, well, world-wide and so is the impact of its “journalists.”

* Among those making use of these “New Age” tools are some who use the guise of journalism as a cover for our enemy’s disinformation and propaganda. In fact, some of the most capable users of the Internet routinely engage in information warfare on behalf of Islamofascist terrorist organizations like Al Qaeda, Hezbollah, Hamas and their state-sponsors.

* Then there are the individuals who hold positions of trust in the federal government itself. They have been given access to secret data and capabilities on the promise not to reveal such knowledge without authorization. Yet, some choose to violate their oaths in the furtherance of divergent policy agendas. Of course, folks in this category are not journalists. They are called “sources.”

...

Still, it is a terrible idea – particularly in time of war – to be providing “media shields” to anyone who can claim to be a journalist and to their law-breaking sources in government. Yet, that is precisely what S.2035 would do.

...

Were S.2035 to become law, investigators and prosecutors charged with bringing to justice sources who have engaged in criminal leaks would have to prove all of the following to the satisfaction of a federal judge: (1) The government has first exhausted all other avenues besides the journalist to obtain a source’s identity; (2) there are reasonable grounds to believe that a crime has taken place; (3) the source’s identity is “essential” to the investigation; (4) the information that was disclosed was “properly classified” to begin with; (5) the person who leaked the information had authorized access to it; (6) the source’s unauthorized disclosure “has caused or will cause significant, clear, and articulable harm to the national security; and (7) non-disclosure of the source’s identity would be contrary to the public interest when weighed against the other public interest in “gathering news and maintaining the free flow of information.”

As a practical matter, as an array of Cabinet and subcabinet officers responsible for keeping us safe and enforcing the law have warned the Senate, no source is going to be held accountable under this law. For example, Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell advised the Senate’s leadership they would be hobbled by myriad Catch-22s inherent in the FFIA.

...

I have never thought shield laws were a good idea. They allow sources to hide their agenda, which can go to the credibility they bring to the story. They are also an accomplice to cowardice. If a source has information that he believes is important to the public, he should have the courage of his convictions and come forward publicly and make his case. That is why we have whistle blower laws.