Legislative efforts to shield the media from disclosing sources of classified information often follow perceived incidents of prosecutorial overreach. Following the Valerie Plame investigation, media shield legislation received consideration in both houses. The Free Flow of Information Act curtailed investigate authority to compel disclosure of media sources who disclose national security and other law enforcement sensitive information.
The letter highlighted several areas of concern, including transfer of broad authority over national security determinations to the judiciary, creating a highly subjective balancing test for disclosing national security information that ignores past harms, inevitable conflict with FISA and grand jury secrecy protections, and intractable definitional problems that would permit virtually anyone — including those affiliated with extremist organizations — to qualify for protections created by the legislation. The letter expressed the belief, "based on decades of experience, that, by undermining the investigation and deterrence of unauthorized leaks of national security information to the media, this legislation will gravely damage our ability to protect the Nation's security." The full text of the letter, can be found here.
During the 2008 campaign, President Obama expressed support for media shield legislation but changed course after assuming office in 2009. His reversal reflected the collective opposition of the DOJ, DNI and the intelligence community. As a result of White House opposition and WikiLeaks's disclosure of classified diplomatic cables, Sen. Charles Schumer's (D-N.Y.) 2009 Free Flow of Information Act did not receive a floor vote was considered dead.
Until last Wednesday.
Following the media backlash over the DOJ's efforts to determine the source of national security leaks at the AP, a White House official asked Schumer to reintroduce media shield legislation. A Statement of Administration Policy (SAP) on pending legislation is preceded by a formal, Office of Management and Budget-led interagency clearance process that takes the views of all affected agencies into consideration. This process usually takes weeks and is the focus of intense negotiation. Given the speed of the White House request, there no indication this process was followed here.
This departure raises important questions. Who initiated the White House request and what were the circumstances surrounding it? Did the White House ask Schumer to reintroduce the Free Flow of Information Act to quell media reaction to the DOJ's AP leaks investigation? Was the intelligence community consulted and does it now support legislation it has strongly opposed whenever it has been presented? Has DOJ abandoned its opposition to the legislation? If so, what circumstances justified this change? How will enactment affect the potential prosecution of Julian Assange, WikLeaks and other persons and organizations that unlawfully disclose information harmful to the national defense? Will enactment encourage others to breach official networks to unlawfully transmit classified information? Will enactment compromise pending investigations into highly damaging national security disclosures relating to United States cyber operations and the sources and methods by which the CIA and Pentagon identified and eliminated Osama bin Laden? Recent reports suggest that the Stuxnet disclosure actually enhanced Iran's uranium enrichment program and the physician who helped confirm bin Laden's location remains incarcerated as a result of unauthorized leaks. And future leaks are inevitable.
While the First Amendment is vital, it neither places reporters above the law nor confers immunity to those who unlawfully transmit highly sensitive national security information through media outlets. Who in Congress will halt the rush toward a federal media shield law and give voice to U.S intelligence professionals sworn to silence and anonymity?
Before Congress takes up any media shield legislation, it must first examine whether the DOJ overstepped its authority in the AP investigation. If so, DOJ personnel must be held accountable and department guidelines clarified. Enacting the Schumer legislation to create a safe harbor for unauthorized purveyors of classified information harms U.S. intelligence and military and diplomatic operations. The existence of reporter privilege laws in most states is immaterial; the national security and conduct of covert activities are uniquely entrusted to the United States.
The national security concerns that justified administration opposition in the past have not changed, only the politics have. Congress must ensure that the administration's position on media shield legislation reflects the collective view of the intelligence and law enforcement agencies most affected; not the whim of a senior White House official responding to the latest news cycle.
Tracci was counsel, chief legislative counsel and parliamentarian at the House Judiciary Committee from 2000-2006; deputy assistant attorney general from 2007-2008; and special assistant United States attorney from 2009-2012.