By Jonathan E. Kaplan - 11/16/05 12:00 AM EST
The chances of Congress passing a law to protect journalists who conceal their sources during a legal proceeding could improve if a trial pits reporters against Vice President Cheney’s former chief of staff, Lewis “Scooter” Libby, Rep. Mike Pence (R-Ind.) said this week.
“After the Libby case gets done, where four of the most famous journalists in America could be put in the dock and cross-examined, the public may be interested in clarifying the law,” Pence said, referring to the fact that Libby could be tried for perjury and obstruction of justice in the case of Valerie Plame, a CIA operative whose name was improperly made public.
Pence added, “People know the media are on their side and will find it deeply offensive, and I am reasonably confident we could bring a responsible media shield forward.”
Pence is the leading advocate in Congress of a media shield law and, with Rep. Rick Boucher (D-Va.), Sen. Richard Lugar (R-Ind.) and Sen. Chris Dodd (D-Conn.), introduced legislation that would grant reporters the right to keep a source’s name confidential even if subpoenaed. The privilege would not apply if there is an “imminent threat” to national security.
Pence has allied himself with Judith Miller, the former New York Times reporter who spent 85 days in jail this year for refusing to cooperate with the special prosecutor investigating whether Bush administration officials broke a law in revealing Plame’s identity.
“She was in very good spirits,” said Pence, who appeared with Miller last week on a panel in New York. “It’s a delight to me and Rick Boucher that she’s dedicating her press and fame to moving this legislation. Even an imperfect journalist deserves protection of [the] First Amendment.”
The use of confidential sources has become an issue of both law and policy because of several recent media reports based on leaked classified information. Aside from Plame’s identity, the press has revealed the CIA’s budget and the existence of so-called “black sites,” secret CIA prisons in Eastern Europe and elsewhere where al Qaeda suspects are being held and interrogated.
Speaker Dennis Hastert (R-Ill.) and Majority Leader Bill Frist (R-Tenn.) have ordered the House and Senate Intelligence committees to investigate whether a leak to The Washington Post exposing the blacksites broke the law.
To learn the leaker’s identity, lawmakers could subpoena The Washington Post’s reporter Dana Priest and compel her to disclose her sources.
Pence, a former radio talk-show host, said doing so would be justifiable because the leak included “real time” classified information that posed an “imminent threat.”
“My view turns entirely on [whether] the information that was leaked constituted a breach of national security and compromised our national security,” said Pence when asked about Hastert and Frist’s decision. “That’s precisely the kind of leak that our federal media shield would not protect.”
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said, “That’s not so crystal clear to me. There’s a very good argument that unless there is an actual and imminent threat, a reporter should not be forced to testify.”
The problem with having no blanket privilege is that courts would play a significant role, she added, although the process would be “cleaner” because courts would have direction from Congress.
Pence acknowledged that any shield law would require a “careful balancing act” between reporters and their sources, the public’s right to know and what constitutes an imminent national security threat.
“We did not know anything about the Manhattan Project because from time to time and in the defense of the nation we need to protect the nation’s secrets,” he said. “Putting American military personnel, jeopardizing American allies who have clandestinely cooperated with the U.S. government is precisely what we want the law to discourage and have prosecutors track those leaks down.”