[Senate Hearing 109-837]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-837

  REPORTERS' PRIVILEGE LEGISLATION: PRESERVING EFFECTIVE FEDERAL LAW 
                              ENFORCEMENT

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 20, 2006

                               __________

                          Serial No. J-109-111

                               __________

         Printed for the use of the Committee on the Judiciary











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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director





















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....    26
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin, 
  prepared statement.............................................    94
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    95
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     8
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                               WITNESSES

Baird, Bruce A., Partner, Covington & Burling LLP, Washington, 
  D.C............................................................    20
Clymer, Steven D., Professor, Cornell Law School, Ithaca, New 
  York...........................................................    16
McNulty, Paul J., Deputy Attorney General, U.S. Department of 
  Justice, Washington, D.C.......................................     2
Olson, Theodore B., Partner, Gibson, Dunn & Crutcher LLP, 
  Washington, D.C................................................    14
Schwartz, Victor E., Partner, Shook, Hardy & Bacon LLP, 
  Washington, D.C................................................    18

                         QUESTIONS AND ANSWERS

Responses of Bruce A. Baird to questions submitted by Senator 
  Kennedy........................................................    28
Responses of Steven D. Clymer to questions submitted by Senators 
  Kyl and Kennedy................................................    30
Responses of Paul J. McNulty to questions submitted by Senators 
  Kyl, Leahy and Kennedy.........................................    46
Responses of Theodore B. Olson to questions submitted by Senator 
  Kennedy........................................................    69
Responses of Victor E. Schwartz to questions submitted by Senator 
  Brownback......................................................    72

                       SUBMISSIONS FOR THE RECORD

American Beverage Association, Association for Competitive 
  Technology, Chamber of Commerce of the United States, Food 
  Products Association, Grocery Manufacturers Association, 
  National Association of Manufacturers, and Rubber Manufacturers 
  Association, joint statement...................................    80
Baird, Bruce A., Partner, Covington & Burling LLP, Washington, 
  D.C., statement................................................    81
Clymer, Steven D., Professor, Cornell Law School, Ithaca, New 
  York, statement................................................    85
McNulty, Paul J., Deputy Attorney General, U.S. Department of 
  Justice, Washington, D.C., statement...........................    98
Olson, Theodore B., Partner, Gibson, Dunn & Crutcher LLP, 
  Washington, D.C., statement....................................   115
Schwartz, Victor E., Partner, Shook, Hardy & Bacon LLP, 
  Washington, D.C., statement....................................   129
 U.S. Chamber of Commerce, R. Bruce Josten, Executive Vice 
  President, Government Affairs, Washington, D.C., statement.....   141




















 
  REPORTERS' PRIVILEGE LEGISLATION: PRESERVING EFFECTIVE FEDERAL LAW 
                              ENFORCEMENT

                              ----------                              


                     WEDNESDAY, SEPTEMBER 20, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:33 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Kyl, Brownback, and Schumer.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen. The 
Senate Judiciary Committee will now proceed with our hearing on 
reporters' privilege.
    This issue arises from legislation introduced by Senator 
Lugar in the U.S. Senate and by Congressman Pence in the House. 
It has been modified and introduced under the caption of the 
Lugar-Specter bill in the Senate. We have had three hearings on 
the issue and have had testimony from some 21 witnesses. Our 
concern here is on public information. These issues always 
start with Jefferson, who said, ``I would prefer to have 
newspapers without government than government without 
newspapers.''
    The noted columnist William Safire had the essence of the 
issue on a hearing before this Committee: ``The essence of news 
gathering is this: if you don't have sources you trust and who 
trust you, then you don't have a solid story, and the public 
suffers from it.''
    The motivation to move ahead in this area comes from a 
couple of directions. One direction is that there is a deep 
split among the circuits. The First, Fourth, Fifth, Sixth, and 
Seventh do not allow journalists to withhold information absent 
governmental bad faith. Four other circuits--Second, Third, 
Ninth, and Eleventh--recognize a qualified privilege which 
requires courts to balance freedom of the press against the 
obligation to provide testimony on a case-by-case basis.
    That split is important to rectify or to have some 
governing law, and we are very much concerned about the Judith 
Miller issue on being jailed for some 85 days. Where you have a 
national security interest, there is a reason to proceed and 
perhaps hold someone in contempt. I say ``perhaps'' because it 
is a very strong remedy.
    I visited Judith Miller in the detention center in 
Virginia, and as I have said in this hearing room before, I 
wondered why the investigation proceeded after it was apparent 
that there was no national security interest. It is one thing 
to pursue an investigation on a national security interest and 
to incarcerate even a reporter. It is quite another if you are 
investigating perjury and obstruction of justice.
    Those are serious matters. I was a prosecutor myself and 
know the importance of stopping perjury and stopping 
obstruction of justice. But it reaches a different level on 
incarceration of a reporter and on the issue of national 
security. That is perhaps the exceptional situation, and I say 
``perhaps'' because it is a very heavy remedy.
    We have talked to the distinguished Deputy Attorney General 
about this matter informally. The Department of Justice is very 
concerned about whether it will hamper their activities on 
national security cases or in criminal prosecutions, and we 
decided to have an extra hearing today to see if we can find a 
way to modify the legislation, if we deem that appropriate with 
the wisdom of the distinguished panel we have here today.
    So that brings us to you, Mr. Deputy Attorney General, an 
outstanding record as a prosecutor and doing an outstanding 
job, in my opinion, in the Department of Justice.
    Parenthetically, we were pleased to confirm the Assistant 
Attorney General for the Criminal Division, Ms. Fisher, 
yesterday in a very, very unusual proceeding.
    I have been joined by my distinguished colleague, Senator 
Kyl, to whom I yield at this point for an opening statement.
    Senator Kyl. Well, Mr. Chairman, it might surprise some 
that I would rather hear from the witnesses, and I am sure you 
would, too. So I will forego an opening statement except to say 
thank you for holding this hearing. And I especially thank all 
of the witnesses who are here to give us their advice and 
counsel.
    Chairman Specter. We are going to have to stick pretty 
close to the time limits because a vote is scheduled at 11 
o'clock, and our experience has been that if you break for a 
vote, hardly anybody comes back. That might not be too big a 
difference in the crowd of Senators we have now, so we will see 
how it goes. But I would like to finish by 11, 11:15, if we 
can.
    Mr. McNulty, the floor is yours.

    STATEMENT OF PAUL J. MCNULTY, DEPUTY ATTORNEY GENERAL, 
            DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. McNulty. Thank you, Mr. Chairman, Senator Kyl. Among 
the benefits of serving in the Department of Justice leadership 
are the memorable experiences of testifying before the Senate 
Judiciary Committee, and this is my second memorable experience 
in 8 days. And so I am ready to give somebody else a chance.
    Chairman Specter. Are you free next week, by the way?
    [Laughter.]
    Mr. McNulty. But what brings us here today again is another 
challenging issue. Challenging issues invariably require the 
balancing of important interests, and today's topic is a clear 
example of that. We are duty bound at the Department of Justice 
to conduct diligent and thorough investigations and, in doing 
so, to protect civil liberties, including the First Amendment 
right of free speech.
    As a Nation, we are fully capable of both protecting our 
security and preserving the media's right to engage in robust 
reporting on controversial issues. Security and freedom are not 
mutually exclusive or, as Justice Goldberg famously observed, 
the Constitution ``is not a suicide pact.''
    The Department of Justice has developed a strong record in 
striking the right balance. At the heart of today's discussions 
is the concern for our National security. An individual who 
leaks classified national defense information to the press 
commits a crime. Leaking classified information reflects a 
profound breach of trust.
    The consequences of leaking can be particularly grave. 
Leaks lay bare aspects of our National defense and risk arming 
terrorists with information needed to avoid detection in their 
plotting against our Nation.
    Some see leakers as nothing more than whistleblowers who 
are caught in a dilemma between, on the one hand, allowing what 
they believe may be unlawful or questionable activity to 
continue within the Government and, on the other hand, an 
inability to disclose the information without committing a 
crime. These so-called whistleblowers, the argument runs, 
escape the dilemma by turning to the media and receiving a 
promise of confidentiality from a journalist.
    This dilemma is a false one. It incorrectly assumes that 
the media is an individual's only outlet. That is not true. The 
Intelligence Community Whistleblower Act of 1998 was an effort 
by Congress to address this very issue. Congress established 
mechanisms through which members of the intelligence community 
could voice concerns while ensuring that classified information 
would remain secure.
    With these mechanisms in place, it is a mistake to dub an 
individual who leaks classified information as a whistleblower. 
A leaker commits a crime. A whistleblower, by contrast, follows 
the legal course of disclosure enacted into law by Congress.
    Upon learning of a leak of classified information to the 
media, our primary focus, as the Attorney General has stressed, 
is on identifying and prosecuting the leaker, not a journalist 
who may have published the leaked information. This focus is 
reflected in the Department's guidelines for the issuance of 
subpoenas to the media. Those guidelines ensure that subpoenas 
seeking confidential source information from journalists are 
issued only as a last resort.
    In the past 15 years, we have requested source information 
from the media in less than 20 cases. The Department of 
Justice's record then is one of restraint. We have diligently 
investigated leaks while protecting the media's right to report 
broadly on issues of public controversy.
    Only in extraordinarily rare circumstances--less than 20 
cases in 15 years--has the Department determined that the 
interests of justice warranted compelling information 
implicating sources from a journalist. During this entire time, 
moreover, and indeed ever since the Department adopted its 
guidelines in 1973, the media has not missed a beat. It has 
continued to use confidential sources and to engage in robust 
reporting on issues of extraordinary importance to our 
communities and Nation.
    Against this history, I respectfully suggest that the Free 
Flow of Information Act of 2006 is a solution in search of a 
problem.
    Now, I see my time is about up.
    Chairman Specter. That is all right. You may proceed,
    Mr. McNulty.
    Mr. McNulty. Almost finished, Mr. Chairman. Just a couple 
more pages. In my remaining time, I wanted to highlight some of 
the bill's most serious flaws.
    First and foremost, by making it far more difficult to seek 
source information from a reporter in those infrequent 
circumstances when it proves necessary, the bill sends the 
wrong message to leakers. It may encourage their unlawful and 
dangerous behavior.
    Second, the bill shifts law enforcement decisions from the 
executive branch to the judiciary. This shift is 
extraordinarily serious in the national security area where the 
executive officials have access to the full array of 
information necessary to make informed and balanced national 
security judgments. The bill undermines this constitutional 
responsibility and separation of powers by thrusting courts 
into the altogether unfamiliar territory of having to weigh 
national security interests against the public's interest in 
receiving certain news. As numerous judges have recognized, the 
courts lack the institutional resources and expertise to make 
those decisions.
    The bill goes even further, though. In imposing the burden 
of proof on the government, it places a thumb on the scale in 
favor of the reporters' privilege and tips the balance against 
executive branch judgments about the nature and scope of damage 
or potential damage to our Nation's security.
    Section 5 of the bill is problematic for reasons of a 
different variety. The Sixth Amendment entitles criminal 
defendants to compel witnesses to appear in court and testify. 
Section 5, however, would permit defendants to access a class 
of witnesses only if, ``based on an alternative source,'' they 
are able to show that the witness had information relevant to a 
successful trial defense. The Sixth Amendment imposes no such 
``alternative source'' requirement. Nor does the Sixth 
Amendment, unlike the proposed bill, require a court to balance 
criminal defendants' constitutional rights against the public 
interest in news gathering and in maintaining the free flow of 
information. Such a balancing requirement in this context is 
entirely out of place.
    For these reasons and the others contained in my written 
statement, Mr. Chairman and Senator Kyl, the Department of 
Justice firmly opposes the proposed bill, though we recognize 
the clear and well-intended purpose of its sponsors and 
supporters. And, Mr. Chairman, I also appreciate the efforts 
that you have made personally, and your staff, to try to 
address some of the concerns we have raised and the changes 
that have been made in the legislation. But we still hold these 
positions even with those efforts.
    So thank you for the opportunity to testify here, and I 
look forward to discussing this with you.
    [The prepared statement of Mr. McNulty appears as a 
submission for the record.]
    Chairman Specter. Well, thank you, Mr. McNulty.
    Starting the 5-minute rounds now, at the outset I disagree 
with you that it is a solution in search of a problem. When you 
have got a split in the circuits and you have got the Judith 
Miller case, my view is it is something we ought to address 
legislatively.
    You have said or it has been noted that the legislation is 
modeled after the guidelines of the Department of Justice, what 
you already use. Can you give me a case illustratively where 
the standards in the pending legislation would differ from what 
the Department of Justice now does to prejudice the Department?
    Mr. McNulty. You are looking for a specific case where we 
have issued or an opinion has been issued--
    Chairman Specter. Well, I am looking for the difference, 
and instead of asking you to comment on the differences between 
the two--and perhaps you cannot give it on the spur of the 
moment. But I would like you to address that in concrete terms. 
What kind of a case illustratively would prejudice the 
Department by this legislation that would not hurt the 
Department by using your guidelines?
    Mr. McNulty. I think, Mr. Chairman, the heart of that 
question or our response to that question goes to the national 
security area, and in that I would say just a couple things.
    By setting the standard the way in which the provision 
relating to national security does concerning the need for the 
Government--the burden is on the Government now, the burden of 
proving significant harm and through clear and articulable 
facts. So it is preponderance of the evidence, but it is clear 
and articulable harm that has to be proven. We are put into a 
very difficult situation, and I can think of a number of 
hypotheticals where that standard creates real problems for us. 
For example--
    Chairman Specter. Let me interrupt and move it along 
because I have a couple more questions. If you want to 
supplement, do so in writing.
    You have the contempt citation of Judith Miller. Had the 
Lugar-Specter bill been in effect, I think she would not have 
gone to jail. Would she have gone to jail by a proper 
application of the Department of Justice guidelines?
    Mr. McNulty. I really do not know how to respond to that 
because that would require me to know all of the circumstances 
and facts involved in that investigation which would lead to 
our application of our guidelines to say that we have exhausted 
all the other methods to obtain the information.
    Chairman Specter. Well, may I ask you to make that inquiry?
    Mr. McNulty. Well, the problem is--I would be happy to do 
whatever the Chairman wants, but here is my problem. I am 
recused of the investigation being conducted by Pat Fitzgerald, 
and for me to get the information necessary to make a decision 
about whether or not the Judith Miller case--
    Chairman Specter. Can you delegate that? You have a 
personal recusal?
    Mr. McNulty. Well, it is the leadership recusal. The AG is 
recused, I am recused. It is a Special Counsel investigation. 
Now, Dave Margolis in my office is the person who oversees or 
has supervisory control over the Special Counsel.
    Chairman Specter. Well, I would like an answer to that 
question from the Department of Justice. We are considering 
oversight at the right time as to what the Special Prosecutor 
has done. But that bears directly on this legislation. This 
legislation was, as I said earlier, motivated significantly by 
the Miller incarceration and the circuit split. So I would like 
the Department to know the Department has continuing 
responsibility for what Mr. Fitzgerald is doing.
    Mr. McNulty. Yes.
    Chairman Specter. The Department has the authority to 
discharge him, for example, if the circumstances are 
appropriate. So I would like whoever is not personally recused 
to give us a response.
    Mr. McNulty. I will take it back to the Department.
    Chairman Specter. OK. You say--and I am concerned about 
this, too--that the courts' lack ability to weigh national 
security interests, and there is a fair amount of judicial 
discussion of that dealing with the President's inherent 
authority, which we have in the surveillance legislation. But I 
was at the Judicial Conference yesterday talking to D.C. 
circuit judges who have to weigh classified information on 
habeas corpus, and the President has agreed to the electronic 
surveillance bill where the court is going to weigh it.
    Doesn't that show that the courts do have the capacity to 
weigh national security matters?
    Mr. McNulty. Well, I mean, courts do look at national 
security issues in certain ways, but this one presents, I 
think, an impossible task for the court because it requires the 
court to know so much about the significance of a harm and be 
able to say that this disclosure, which might, by the way, 
involve some tactic or some effort by the Government that is 
controversial and a matter of public discussion, and a judge is 
going to look at that, every different judge looking at it in a 
different way, and say that that outweighs this harm.
    Now, the harm will have to be understood in the context of 
all of the facts and aspects of harm that are going on. A 
responsibility that constitutionally has been committed to the 
executive branch, and courts have observed that repeatedly. 
That would be a very big undertaking.
    Chairman Specter. Thank you, Mr. McNulty.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman.
    Let me pursue that same course because I think while there 
are a lot of issues relating to the legislation, the one that 
probably is of most national importance and the one that raises 
the most questions in my mind is the exception for national 
security interest, primarily Section 9.
    The Chairman began to get into an area of inquiry that I 
wanted to pursue as well, and that is, what kind of standards 
there would be to evaluate whether or not the Government had 
met its burden here. The language, for example, ``outweigh the 
public interest in news gathering and maintaining a free flow 
of information to citizens,'' how would a court look at this? 
Is there a body of law? Is there some kind of a test? How would 
you define whether you have satisfied the ``public interest in 
news gathering'' test or ``public interest in maintaining a 
free flow of information to citizens''?
    Mr. McNulty. Senator, I think it would be highly 
subjective. I think each judge would have to make that kind of 
judgment on his or her own about this balance. And the problem 
is the judge would do that knowing something of the harm--that 
is, the intelligence community would try to muster all of its 
information in some ex parte proceeding and present that as 
best as possible. But by the very definition of the Act, it is 
going to limit some of that information. And even doing it--and 
this is one interesting point--even by going into court and 
making this showing of significant harm, we are potentially 
signaling to our enemy who may be involved in that story that 
we believe that this disclosure is a significant harm. And 
perhaps we have tried, for national security interests, to 
downplay the disclosure or to in any way limit the damage from 
the disclosure. But now by going after the source information, 
we are saying that yes, indeed, we have enough evidence here to 
convince this judge that a significant harm to national 
security has happened.
    Senator Kyl. And by the very nature of the effort here, it 
is not something that can be kept secret or classified because 
the whole point is to weigh the harm versus the other general 
interest--
    Mr. McNulty. Certainly that exercise would be public. The 
information provided would be in camera.
    Senator Kyl. The ``significant harm to national security'' 
is what we are talking about. That is the exact language. Do 
you have a sense of what would have to be established in order 
to demonstrate the harm is significant? In other words--let me 
put it conversely--what harm to national security is not 
significant?
    Mr. McNulty. Well, that is right. I think that the term is 
going to mean different things to different folks. Some judges 
I think will say that, ``I believe if it involved national 
security, I am going to err on the side of agreeing with the 
Government in terms of the significance.'' Other judges will be 
much different about that and will want to see very specific 
information about that.
    Another problem is that a disclosure sometimes can occur 
that reveals something that may actually be partially known or 
suspected, but it is related to other programs that have not 
been disclosed. And now the concern of the Government is if we 
do not get to the source of that information, we run the risk 
of those other programs being exposed. And so now the 
significant harm is just a bit extended. It is not about that 
disclosure, but about that person's access to information where 
the harm could be much greater.
    Now, will a judge see that as clearly outweighing the 
interest of the public for the information? It is hard to say.
    Senator Kyl. What comes to my mind is the disclosure of the 
national surveillance activity, as it has come to be known, and 
immediately following the public disclosure were the calls for 
the Government to answer the question: What other programs do 
you have that are like that? Or are there any other programs 
that are like that?
    Is that a matter of concern?
    Mr. McNulty. That is right. I think that is the kind of 
widening circle effect that this can have.
    Senator Kyl. One of the provisions here talks about, in 
subsection (a)(2), ``unauthorized disclosure of properly 
classified information.'' What does that mean?
    Mr. McNulty. I am sorry. This is in section--
    Senator Kyl. It is subsection (a)(2). It is part of general 
Section 9. The (a)(2) exception, the Act will provide no 
privilege ``against disclosure of information...in a criminal 
investigation or prosecution of an unauthorized disclosure of 
properly classified information...''
    Mr. McNulty. Oh, right. This also is, I think, a 
significant problem with the bill because now the court also 
has to make a decision that this information has been properly 
classified. And that in itself is a big undertaking because it 
then puts the judge in the position of making--or exercising 
the kind of judgment that experts in the field have to 
exercise, which is to know that if this information were to get 
into the hands of the enemy or do harm to the United States and 
other aspects of classification.
    So the judge is now saying, ``I am not sure I even buy that 
you have classified this properly and, therefore, everything 
that follows is I do not think that the disclosure of it is a 
problem.''
    Senator Kyl. Just a quick followup, Mr. Chairman. So you 
don't read that as narrowly as just a procedural limitation 
but, rather, the substantive judgment of whether it was 
appropriate to classify the information in the first instance?
    Mr. McNulty. That is how I read it. I certainly defer to 
the authors and supporters if I am missing something there.
    Senator Kyl. It does not say one way or the other.
    Mr. McNulty. That is how I see it. And I want to quickly 
just say and make sure there is no misunderstanding here, and I 
will have to repeat myself. When we are talking about the risks 
here on the national security front, the Government's interest 
is to find the leaker. And I know that, because this is such a 
sensitive subject, by talking about those concerns there in the 
bill, it is easy to jump to the next conclusion, which is, oh, 
OK, so every time there is a leak of something that is highly 
sensitive, you want to go after the reporter. And the answer is 
no. We want to go after the leaker, and that is why this 
authority has been sparingly used, less than 20 times in 15 
years. But it is about whether or not we will ever have that 
ability if we believe that that is our last recourse in being 
able to get the information.
    Chairman Specter. Thank you, Senator Kyl.
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman. First, I would 
ask unanimous consent that Senator Leahy's statement be made a 
part of the record.
    Chairman Specter. Without objection, it will be placed in 
the record.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman. I want to thank 
you for holding the hearing and thank Deputy Attorney
    General McNulty for coming by.
    I believe that--and I think everyone agrees--the press has 
a vital role to play in our country in providing people with 
information. A free and independent press is just as important 
as a fair and independent judiciary, and the freedom is 
enshrined in our Constitution with good reason. It is 
exemplified every day by brave and intrepid men who make up the 
most vibrant and effective press community in the world.
    To be sure, the threats to a free press come from many 
quarters, not just the Government. If you pick up a newspaper 
this morning, you will be shocked to see that a respected 
international company, Hewlett-Packard--it is here in the New 
York Times here--looked into infiltrating newsrooms to identify 
leakers of confidential corporate information. So this problem 
is everywhere, and it is probably going to get greater, not 
less, as we depend on information more and more and more in our 
society.
    So there certainly is a need to protect press independence. 
In order for the media to do their job, we know it is important 
for them to use confidential sources. In many cases, there is 
no problem in protecting confidential sources. When Government 
officials are acting as whistleblowers, as a confidential 
source in the Government says the agency has doctored a study, 
or when the Government is hiding important information whose 
disclosure will not harm national security in any way--in those 
cases I think every one of us would want the reporter to be 
able to get the information and have it out, unless we want to 
change the whole fabric as to the way this Government has been 
going for over 200 years.
    But in other cases, the leak itself is per se a violation 
of law, and that is the problem I had with the broader bill 
that was introduced. Not all leaks are OK, which is what the 
broader bill said. When a person leaks secret grand jury 
information, that is against the law. Society has made a 
determination: You leak grand jury information, that is against 
the law. There is no countervailing issue here because we have 
made that--and it is routinely done by prosecutors to aid their 
cases. We have all seen it.
    The Plame case is another one. Leaking the identity of a 
covert CIA agent is against the law. There is no justification 
for a reporter holding information. In cases like these, the 
harm done by the leak and the need to punish the leaker often 
far outweighs the need to keep a source confidential.
    So we have a balancing test here. How do you draw the line? 
And I think the bill that Senator Specter has drawn up and I 
have cosponsored recognizes there must be a balance. It 
recognizes we have to preserve a free press but ensure that 
criminals are brought to justice. It recognizes that not all 
disclosures by Government officials to members of the press are 
equal. That is the fundamental wisdom of the bill. And you have 
extremes on both sides saying the press is right all the time, 
it should always be protected, and then the press is never 
right, it should not be.
    We certainly want to protect a whistleblower. We certainly 
want, if someone at the FDA sees that tests are being short-
circuited and goes to the higher-ups and they say, ``Go away,'' 
that they be able to go to the press and expose it. On the 
other hand, when something is publicly prohibited by statute 
from being made public, it is a different story. When there is 
an overriding public interest against disclosure, which there 
is not in the typical whistleblower case, the press must bend 
to the needs of law enforcement.
    One of the problems, of course, is that the government has 
a self-interest in overclassifying things, and not just in 
national security. You could make a hypothetical argument that 
some Government official would say everything we do is 
classified. So we have to be mindful of that as well, and you 
pointed out, Mr. Deputy Attorney General, someone has to make 
that determination. I would argue a judge is often better at 
making that determination despite his or her lack of 
familiarity than the self-interested Government is in case 
after case after case.
    So the legislation does seek that balance. It is not an 
easy balance, but I think this legislation, unlike the previous 
bill, it is better to have it than not to have it, and that is 
why I am supporting it. But I want to make two other points, 
and then I will conclude.
    First, I was struck by a statement in Mr. McNulty's written 
testimony. You say, ``There is no virtue in leaking. It 
reflects a profound breach of public trust and is wrong and 
criminal.'' I understand that point of view, but many leaks 
outside of the national security context have been good for 
America. Movies extol leakers. Books do. Our society does. 
Every President has. So I think that statement goes quite 
overboard, and I was wondering if you meant it only in the 
national security context.
    Second, I worry that this administration has engaged in a 
pattern of selective outrage. I worry that the administration 
employs a double standard when it comes to leaks and the harm 
to our National security. Congressman Delahunt and I sent a 
detailed letter to Attorney General Gonzales and John 
Negroponte on July 18th, pointing out case after case where it 
was clearly classified information that was leaked, and we did 
not hear a peep from the Government because it seemed to serve 
their interests to have that information out, and then others 
where everyone was on their high horse condemning the leak.
    So a review of the record, at least our review, leaves the 
impression that the administration is unconcerned about leaks 
of classified information to certain media sources, 
particularly when the revelation may have provided a political 
advantage to the administration, and that ultimately is 
destructive of the values that you seek to assert in your 
testimony.
    Well, I received a response from Mr. Negroponte. He said--
    Chairman Specter. Senator Schumer, how much longer do you 
need?
    Senator Schumer. About 30 seconds, Mr. Chairman.
    Chairman Specter. We are looking at an 11 o'clock vote, and 
I had said--
    Senator Schumer. About 30 seconds.
    Chairman Specter [continuing]. Earlier we would have to 
stay within the time limits.
    Senator Schumer. I need about 30 seconds.
    Chairman Specter. Fine.
    Senator Schumer. I did not receive a response from the 
Justice Department, even though Negroponte said, ``Questions 
regarding the number of referrals and the status of any 
associated investigation have been referred to the Department 
of Justice, which is best able to determine the information 
that can be provided in these matters.''
    So I am asking you, am I going to get a reply to my letter?
    Mr. McNulty. I will check it out.
    Senator Schumer. Fine. Please, would you get back to me?
    Mr. McNulty. Yes.
    Senator Schumer. This is an important issue. It relates to 
this legislation. We deserve a response. It was a very careful 
and well-thought-out letter.
    Mr. McNulty. OK.
    Senator Schumer. OK, fine.
    Let me conclude by saying just as we have to balance 
liberty and security, we need to balance a free and independent 
press against the needs of law enforcement, and I think this 
legislation comes as close as one can to striking that balance.
    I yield.
    Chairman Specter. There is no question pending, Mr. 
McNulty, but would you like to answer.
    Mr. McNulty. Sixty seconds. I know we are moving along 
fast.
    I wanted to say first my statement's language was not 
properly qualified. I apologize for that, because my intention 
here is to talk about the unlawful leaking. ``Leaking'' is a 
general term, and it is best to use it in a qualified way. And 
I am referring here to where it is a violation of law. I 
certainly understand your point about the fact that disclosing 
information generally can be certainly not a violation of law 
and, therefore, can be of some help, or whatever, depending 
upon the circumstances.
    Just one other quick point, and that is, I really 
appreciate, Senator Schumer, your acknowledgment of the fact 
that there is an area where it is unlawful to disclose 
information, whether it is classified or it is grand jury. My 
concern about this bill is that no matter what side of the 
debate you are on here, you have to say that it is going to 
make it harder for the Government to get this information. That 
is sort of the point of it, that we have to go to court. We 
have the burden, and we have to convince the judge that this 
interest and this need outweighs the public right to know and 
gather information from the media and so forth. And that alone, 
I think, sends a troubling message to the unlawful disclosure 
of information because it says that now it is just that much 
harder for the Government to ever find me if the Government is 
going to try to do it. There is a greater burden, there are 
more obstacles, and I think it could encourage that process 
rather than discourage it.
    Chairman Specter. Thank you, Mr. McNulty.
    We are going to be pursuing this legislation, Mr. McNulty, 
and we will continue to work with you to see if we can find an 
accommodation. I understand your position today, and we wanted 
to have this hearing, as I said earlier, to have a public 
discussion of the position of the Department of Justice. And we 
want to see if we cannot accommodate your interest, but I think 
it is highly likely-- and, of course, I cannot speak for the 
Congress, only for myself. But I think it is likely we will be 
proceeding with the legislation.
    Mr. McNulty. Senator, Mr. Chairman, I would like to submit 
for the record an answer to a question I did not get, which is 
to respond to the former Solicitor General on his concerns 
about the case law and the split among the circuits. You raised 
it in your opening statement.
    Chairman Specter. You want to respond to a question you did 
not get?
    [Laughter.]
    Mr. McNulty. Because I think it is important for the record 
to have the Justice Department's view on that subject, since 
the former Solicitor General is a distinguished person and I 
want to make sure that we have responded to that issue in 
particular. And it is just to say that I think that this issue 
of what the First Amendment protects will still be in the 
circuits even after this legislation is passed. I think that 
reporters would still take that issue up, and you could have a 
disparity. You will shift the disparity, if there is one, in 
the circuits-- and I believe as a practical matter, that 
disparity has proved to be a significant issue. But you will 
shift it to the district court where you will have now all the 
Federal judges with their different way of making this balance, 
and you will end up with some weird things about how in some 
places in the country it is easier to disclose this to the 
press, other places it is not because of the way judges 
operate. And so I think that the problem is not fixed, if there 
is one, in terms of uniformity, by shifting this to the courts.
    Mr. Chairman, thanks for letting me say that.
    Chairman Specter. OK. Thank you very much, Mr. McNulty. 
Thank you for coming in.
    Senator Kyl. Mr. Chairman, I was hoping to have a second 
round of questioning. We will never have a more qualified 
witness than Mr. McNulty here.
    Chairman Specter. You may proceed.
    Senator Kyl. I would appreciate that very much. I will 
continue to be very brief.
    Chairman Specter. You may proceed.
    Senator Kyl. But I want to focus again on Section 9, on the 
national security exception, because I think this is where we 
really have to pay attention.
    One of the definitions is with respect to acts of terrorism 
against the United States. That is where you can have an 
exception to the privilege. And I am wondering whether, Mr. 
McNulty, there are situations in which we might want to act and 
situations where the potential act of terrorism is against 
Canada or the United Kingdom or Mexico or some other country. 
Why just an act of terrorism, in other words, against the 
United States? And, also, could you envision circumstances in 
which the issue would be preparation of an act of terrorism 
rather than an act itself?
    Mr. McNulty. The limitation to the United States did strike 
me as being a potential concern here because we are in such 
close alliance with Canada and the U.K., for example, in terms 
of threat. And the recent attack planning that went on in the 
U.K. this summer I think illustrates what you could get into 
here in terms of trying to convince a judge that this raises 
significant harm in the United States. But that is a potential 
problem.
    Senator Kyl. There is another definitional issue here, and 
I am just perplexed. Maybe I should address this more to the 
authors. But it applies, the words are, ``by a person with 
authorized access,'' and I am wondering what sense it makes for 
the bill to say that there is no privilege in a criminal 
investigation of unauthorized disclosure of information by a 
person with authorized access, but you could have a privilege 
when a person with unauthorized access discloses the 
information. Is that a situation that, in your view, could 
occur? And would it pose a problem?
    Mr. McNulty. Absolutely. The ultimate harm here is the 
disclosure of the information, so the chain of control may not 
be the deciding factor. And it could very well be that the 
individual who had access was not authorized to have it, but 
found the information anyway or went after it in some fashion, 
acting as an agent in some fashion.
    So I think it could create probably an unintended 
consequence.
    Senator Kyl. Even a staff assistant that obviously was not 
cleared--
    Mr. McNulty. Right.
    Senator Kyl. OK. Just quickly moving on, in the definition 
section, Section 3, ``attorney for the United States,'' it 
appears to me that--and it is or any ``other officer or 
employee of the United States in the executive branch.  .  
.with the authority to obtain a subpoena or other compulsory 
process.'' Wouldn't this provision include JAG officers? And if 
that is the case, could this negatively impact military 
tribunals or terror trials by limiting what Government 
attorneys can compel? Wouldn't it be worth considering a JAG 
exception, for example, to the rule?
    Mr. McNulty. Yes, I think the language is broad enough to 
include military attorneys because it refers to an employee of 
the United States generally in the executive branch. So that 
means then that some of the circumstances where this could come 
up with be--and this may be more of an issue down the road, an 
unusual situation involving a military investigation and 
prosecution, and they raise some question about the court of 
jurisdiction there, too, as well.
    Senator Kyl. Given the fact that we are considering how to 
do these military tribunals and so on, it seems to me that that 
is an important issue that we should look at.
    Let me just ask finally, to try to keep within the time 
here, there was one thing that struck me as odd outside of this 
National security exception, and I would like to get your 
comment on it. In Section 7, it says, ``If the alleged criminal 
or tortious conduct is the act of communicating the documents 
or information at issue, this section shall not apply.'' In 
other words, there is a privilege.
    Is there a rationale, in your view? Why should a journalist 
have a privilege when the act of communicating the documents or 
information to the journalist is a criminal act? What is the 
rationale for that, in your view? I guess the question from 
your point of view of a prosecutor, what issues would that 
raise?
    Mr. McNulty. Well, that is a complicated question. It 
raises the question of in what way does the violation of 
criminal law occur with the disclosure itself, and I concede 
that that is one of the trickier subjects here in this.
    The argument could be made on the side of those supporting 
the bill that the disclosures, generally speaking, would 
violate--in all aspects could violate the law and, therefore, 
that would swallow up the privilege itself. But then you have 
that issue that Senator Schumer raised as well, that you do not 
want to protect illegal activity.
    So it becomes a difficult matter to navigate in this 
legislation.
    Senator Kyl. I appreciate it.
    Mr. Chairman, in view of your time constraints, I would 
simply submit some additional questions for the record to
    Mr. McNulty, and thank you.
    Chairman Specter. Fine. Thank you very much, Senator Kyl.
    Thank you very much, Mr. McNulty.
    Mr. McNulty. Thank you, Mr. Chairman.
    Chairman Specter. We now turn to our second panel: 
Honorable Theodore Olson, Professor Steven Clymer, Mr. Bruce 
Baird, and Mr. Victor Schwartz.
    Our first witness is Theodore Olson, partner in the 
Washington law office of Gibson, Dunn & Crutcher, where he co-
chairs the Appellate and Constitutional Law Group. Prior to 
joining the firm, Mr. Olson served as Solicitor General. He was 
involved in high-profile cases involving Hamdi v. Rumsfeld and 
Rumsfeld v. Padilla; headed the Office of Legal Counsel as an 
Assistant Attorney General during the Reagan administration, 
argued 43 cases in the Supreme Court; bachelor's degree from 
the University of the Pacific and a law degree from the 
University of California.
    Thank you for joining us again, Mr. Olson, and we look 
forward to your testimony.

    STATEMENT OF THEODORE B. OLSON, PARTNER, GIBSON, DUNN & 
                 CRUTCHER LLP, WASHINGTON, D.C.

    Mr. Olson. Thank you, Chairman Specter, Senator Kyl. It is 
a privilege to be here before this Committee to testify 
concerning a matter that is important to the ability of 
citizens to monitor the activities of and to exercise a 
democratic restraint on their Government. One of the most vital 
functions of our free and independent press is to function as a 
watchdog on behalf of the people--working to uncover stories 
that would otherwise go untold. Journalists in pursuit of such 
stories often must obtain information from individuals who, for 
fear of retribution or retaliation, are unwilling to be 
publicly identified.
     Naturally, these stories sting. Uncovering corporate 
malfeasance, environmental pollution, official corruption, or 
governmental abuse of power quite often exposes powerful, 
influential interests. The response often is a lawsuit, a leak 
investigation, and full-throated efforts to find and tarnish 
the sources of the information. And subpoenas to the reporters 
who uncovered these facts, these uncomfortable facts, are often 
the weapons of first resort.
    Recognizing the need for some protection for journalists 
and their sources, 49 States and the District of Columbia have 
laws providing some measure of protection to reporters from 
subpoenas. Numerous Federal courts already grant similar 
protections, some based upon the First Amendment and others on 
Federal common law. And as you have observed, Mr. Chairman, the 
circuit courts differ. You mentioned the circuits that provide 
some measure of a privilege and some that do not. Some of them 
provide protections in criminal cases, some only in civil 
cases. So the Federal law is a hodgepodge. How can this make 
any sense in Federal courts? This lack of uniformity creates 
intolerable uncertainty regarding when a meaningful assurance 
of confidentiality can be made.
    This uncertainty renders many existing privilege provisions 
in the States ineffective. Reporters cannot foresee where and 
when they may be summoned into court for questions regarding a 
particular story, and their editors, publishers, and lawyers 
are similarly hamstrung by the confusion and can provide little 
help.
    This proposed legislation does not work a dramatic 
expansion of the reporters' privilege or a realignment of 
public policy, and it may not please everyone. That is usually 
the case with legislation. But it is a long overdue recognition 
that the privilege should be recognized and in Federal courts 
should be uniform, and to the extent, consistent with the 
privileges provided by State courts, those differences should 
be eliminated. This Act regularizes the rules, and it merely 
requires, among other things, that a party seeking information 
from a journalist in a criminal or civil case be able to 
demonstrate the need for that information, that it is real, 
that it cannot be gleaned from another source, and that 
nondisclosure would be contrary to the public interest.
    Concerns over national security and law enforcement have 
been properly addressed and fairly balanced. Naturally, the 
Department of Justice does not want its judgments second-
guessed by judges, and I have the greatest respect for the 
United States Attorneys and the Department officials making 
these decisions, including General Gonzales and Deputy Attorney 
General Paul McNulty. But we do not recoil from judicial 
oversight of these types of decisions when it comes to 
attorney-client or physician-patient privileges or search 
warrants or FISA warrants. And there is no reason we should 
reject it when it comes to a journalist's source of 
communications.
    Bear in mind that 39 State Attorneys General, not bashful 
about protecting law enforcement prerogatives, have supported 
recognition in a brief filed in the Supreme Court in the 
Valerie Plame case. Indeed, they say that the absence of a 
Federal shield law undermines the State law policy decisions 
underlying those provisions.
    Now, reasonable minds can disagree on the value of 
anonymity granted for one story or another, even on the concept 
of a reporter's privilege itself. But there should be no 
disagreement that uniform rules are better than a hodgepodge of 
a Federal system that leaves all parties in a state of 
confusion.
    I have been on both sides of this. I have been in the 
Justice Department for 7 years in two different 
administrations, and I respect the interests and integrity of 
the law enforcement officials. But for another 30 years or so, 
I have been a lawyer representing journalists, reporters, 
broadcasters, and publishers, and it is extremely difficult to 
tell those persons, who are a valuable component of our 
constitutional system, what the law is. I do not see an 
objection to a Federal law that attempts to regularize the 
system and affect the common law policies that are already in 
existence in many States and reflected in the Department of 
Justice's voluntarily adopted guidelines.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Olson appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Olson.
    Our next witness is Professor Steven Clymer, Cornell Law 
School, he began his legal career investigating police 
corruption as an Assistant District Attorney in Philadelphia--
somewhat after my time, Mr. Clymer. Why didn't you apply 
earlier?
    [Laughter.]
    Mr. Clymer. I did not have my law degree then.
    Chairman Specter. Had been an Assistant U.S. Attorney in 
the Central District of California, involved in the high-
profile Federal prosecution of L.A. police officers charged in 
the beating of Rodney King; now teaches criminal procedure, 
evidence, and counterterrorism; undergraduate and law degrees 
from Cornell.
    Thank you for joining us, and we look forward to your 
testimony.

 STATEMENT OF STEVEN D. CLYMER, PROFESSOR, CORNELL LAW SCHOOL, 
                        ITHACA, NEW YORK

    Mr. Clymer. Thanks for having me here today, Mr. Chairman.
    Chairman Specter. When were you an Assistant D.A. in 
Philadelphia?
    Mr. Clymer. I started there in 1983 and I left in 1986.
    Chairman Specter. Was there much police corruption, police 
brutality in 1983?
    Mr. Clymer. Yes, there was a fair amount then.
    Chairman Specter. And the D.A.'s office investigated it?
    Mr. Clymer. Yes. Successfully, I might add.
    Chairman Specter. Aside from my tenure, they did not do too 
much of that. Of course, they did not have Commissioner Rizzo 
to deal with. Times change. Nobody remembers Commissioner 
Rizzo. Anybody remember Mayor Rizzo?
    This comes out of my time, Professor Clymer, not yours.
    [Laughter.]
    Chairman Specter. You may proceed.
    Mr. Clymer. Thank you. Thank you for having me here. I 
would just like to make a couple of points and then answer any 
questions that you may have.
    First, I want to address the question about why there is a 
need for this legislation now, and I guess that boils down to 
the question of whether the present law in its present form is 
an impediment to the free flow of information. And, quite 
frankly, I think that is a hard case to make. The principal 
example I will give are the recent high-profile leaks about the 
NSA wiretapping program and the leak about the CIA detention of 
al Qaeda operatives overseas.
    Those two leaks of highly classified information came in 
the face of widespread news coverage of the jailing of Judith 
Miller--newspaper coverage that made very clear that there was 
little or no Federal protection for anonymous sources.
    That suggests to me that people who are inclined to make 
leaks of that kind of information are going to make leaks 
whether or not there is Federal protection for anonymous 
sources. The people who made those leaks had to have known that 
if the reporters in those cases were subpoenaed, they could be 
compelled to testify about the identity of their sources. Yet 
they chose, nonetheless, to make those leaks.
    What are the other arguments we get for the need for this 
law now? Well, there is an argument that is made by the media 
often that there are more subpoenas now to reporters than there 
ever have been before. I haven't seen statistics, but let's 
assume for the sake of argument that is true, that now there 
are more subpoenas than they have been in the past. One thing 
is clear. Those subpoenas are not coming from the Department of 
Justice, which issues on average less than one subpoena to the 
media for source information every year. That would suggest 
that any law that this body passes ought to exempt the 
Department of Justice, which seems to do a very good job of 
policing itself in this area.
    The third argument that is made for the legislation is the 
need for uniformity, and I think there are powerful claims that 
uniformity across the Federal system is better than a lack of 
uniformity. However, the proposed legislation will not 
accomplish that uniformity. As the Deputy Attorney General 
said, this legislation has a very subjective, open-ended, and 
unstructured balancing test that individual district court 
judges are going to apply on a case-by-case basis. It is a 
balancing test that I believe is virtually unworkable because 
it requires district judges to predict in individual cases what 
disclosure of source information in that case will have on the 
future flow of information to reporters.
    With all respect to Federal judges--and they are due an 
enormous amount of respect--I do not believe they are competent 
to make that determination. And what that balancing test will 
boil down to on a case-by-case basis are the subjective, 
idiosyncratic views of individual Federal court judges. And so 
you will not get uniformity as a result of this proposed 
legislation. You will get greater disuniformity than we have 
today.
    Let's suppose I am wrong about that. Let's suppose there is 
now a need for some legislation to increase the flow of 
information to the news media. Will this legislation accomplish 
that objective? I think the answer is clearly no. The most 
important point in time for the flow of information is when an 
anonymous source calls a reporter and seeks an assurance of 
confidentiality. If the reporter cannot give a certain 
assurance, the source may not disclose the information, and the 
complaint about the present state of the law is there is no 
certain assurance that a reporter can honestly give to a 
source. This legislation does not change that one iota. This 
legislation is subject to eight or nine separate exceptions and 
a series of subjective balancing tests, depending on which 
exception applies.
    At the time the reporter talks to the source, it will not 
be clear which one of those exceptions and which one of those 
balancing tests may apply down the road. It depends on who 
subpoenas the information, whether it is a civil or criminal 
proceeding, the type of case it becomes, and who makes the 
request. The balancing test itself is entirely unpredictable. 
So even if this legislation were to become law tomorrow, that 
reporter talking to that source could not give any assurance of 
confidentiality.
    The third and final question, I suppose, is this: Could I 
do any better? Because it is easy to criticize. It is certainly 
harder to offer solutions. And so I will offer just in passing 
two possible ways that I think you could have a more definite, 
more certain piece of legislation that would go to where the 
problems actually are.
    One possibility is to exempt entirely any disclosures that 
are in and of themselves illegal: leaks of classified 
information, leaks of grand jury information, leaks of wiretap 
information, leaks of tax return information--all of which 
would violate and clearly violate Federal law. Simply make them 
outside the realm of the privilege.
    I have got a different proposal, but I see my time is up, 
so if there is a question, I will answer about that proposal as 
well.
    [The prepared statement of Mr. Clymer appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Clymer.
    We now turn to Mr. Victor Schwartz, partner in the 
Washington firm Shook, Hardy & Bacon, where he chairs the 
firm's Public Policy Group; former Dean of the University of 
Cincinnati College of Law; serves as general counsel to the 
American Tort Reform Association, and had previously chaired 
the Department of Commerce's Interagency Task Force on 
Insurance and Accident Compensation; a graduate of Boston 
University and Columbia Law School.
    Thank you for again appearing as a witness before this 
Committee, Mr. Schwartz, and the floor is yours.

STATEMENT OF VICTOR E. SCHWARTZ, PARTNER, SHOOK, HARDY & BACON 
                     LLP, WASHINGTON, D.C.

    Mr. Schwartz. Thank you, Mr. Chairman and Senator Kyl. It 
is a privilege to be here today, especially on this panel. The 
National Law Journal called me the other week and said there 
are four lawyers in this town that charge more per hour than I 
do, and two of them are on this panel.
    [Laughter.]
    Mr. Schwartz. So I thought that is definitely an honor.
    Chairman Specter. Is there some aspersion on the other 
panelist?
    Mr. Schwartz. No. I am looking up to them, and I am sure 
the professor would be in the same league.
    I have the privilege of testifying on behalf of NAM, which 
is the largest industrial trade association in the country, and 
we would submit a letter for the record, which includes other 
associations that generally concur in my thoughts today. And, 
Mr. Chairman, I know that you and your staff have worked hard 
to create a fair and balanced bill on the subject of the 
reporter privilege. But the purpose is to guarantee the free 
flow of information to the public through a free and active 
check on Government. And you emphasized this in your opening 
remarks--Government and the media.
    There has and will be serious debate about that, but my 
purpose today is outside of the perimeter of that debate. I 
would like to talk about how the bill, perhaps inadvertently, 
affects private litigation. The bill interfaces with the law of 
evidence, and I did teach that for over 15 years. And my first 
article was about the Federal Rules of Evidence, and it had a 
very interesting history that is relevant here today.
    When the Federal Rules of Evidence were sent up to the 
Congress, they did something that is almost unique in the 
history of this body. They struck the part that dealt with 
privileges, and the Senate Judiciary Committee was clear that 
this is a topic in private litigation that should be left to 
the Judiciary. The Committee report said, ``Our actions today 
in rejecting having specific privileges in private litigation 
outline should be understood as reflecting the view that a 
privilege based on confidential relationship and other 
privileges should be determined on a case-by-case basis.'' And 
they set forth a general rule, 501, that all lawyers who 
practice in the Federal courts are familiar with. In essence, 
the House Judiciary Committee Chair said the same exact thing.
    Congress's judgment I think was correct, especially in the 
context of private litigation, and you know that virtually the 
entire Rules of Evidence, Mr. Chairman, are based on finding 
the truth--the hearsay rule, evidence dealing with experts. 
There is only one area where the Federal rules put something at 
a higher value than truth, and that is privilege. And in 
private litigation, this is high-stakes poker and requires 
careful individual consideration in the private litigation 
context.
    In that regard, I think the bill is overly broad because 
its shield would rise up against all leaks--and others have 
discussed this--whether they are legitimate or illegal. For 
example, leaking a trade secret or leaking something protected 
under HIPAA would be given the same protection as a 
whistleblower, which should be protected.
    The Free Flow of Information Act could provide free flow of 
information that should not really flow--trade secrets, health 
files, and other areas of privacy. There should be no safe 
harbor for areas where the source has violated law.
    We just saw recently there was a leak where somebody who 
worked for Coca-Cola gave information over to Pepsi-Cola. 
Pepsi-Cola did the honorable thing and returned it. But if this 
information had been given to a reporter, a blogger, boom, 
everybody could go out and make Coke in their garage, and that 
would not be a very good outcome.
    People who are breaking the law should not be protected by 
simply handing information over to a reporter in the private 
litigation context. The people who have done this should be 
prosecuted, and impediments should not be put in the way.
    It is also true in private litigation. As the Chairman, who 
has extensive experience in litigation, knows, discovery is a 
difficult process, Senator Kyl, and you know this, too. If when 
I am handing over documents in discovery I realize that this 
material can be put in the hands of a reporter and these is no 
way to get any information about the illegal leaker, that is 
going to slow down the discovery even more.
    The great writers on evidence who I studied--and I am sure 
the Chairman remembers--Charles McCormick, who was also
    Secretary of the Navy; a great scholar on evidence, John 
Wigmore--all agree that privileges in the private context 
should not be absolute, these include priest-penitent, lawyer-
client, or reporter. This system in the private litigation area 
has worked well. We have entrusted the judges. They have not 
always done it perfectly, but they know how to do it.
    I thank you for the time you have given me today.
    [The prepared statement of Mr. Schwartz appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Schwartz.
    Without objection, the statement from Senator Kohl will be 
made a part of the record.
    And we now turn to our final witness on the panel, Mr. 
Bruce Baird, senior partner in the Washington law office of 
Covington & Burling, where he specializes in white-collar 
defense and securities information. Mr. Baird had been an 
Assistant U.S. Attorney in Manhattan, handled high-profile, 
complex cases involving Michael Milken, Drexel Burnham Lambert; 
and from 1981 to 1986, he was the lead prosecutor heading a 5-
year investigation into the Colombo crime family; bachelor's 
degree from Cornell and a law degree from the New York 
University School of Law.
    Mr. Baird, we appreciate your being with us and look 
forward to your testimony.

STATEMENT OF BRUCE A. BAIRD, PARTNER, COVINGTON & BURLING LLP, 
                        WASHINGTON, D.C.

    Mr. Baird. Thank you, Mr. Chairman and Senator Kyl. I will 
be brief.
    I think from a prosecutor's perspective and from a defense 
perspective, I have some experience on both sides. I have had 
some high-profile cases in which I would have given my right 
arm to be able to go to reporters and say, ``Give me your 
sources.'' But it is a value that I think we all share that 
resulted in the Department of Justice guidelines and that 
results in prosecutors not being able to do that unless there 
is a really good reason.
    There was a New York Post reporter who had the Colombo 
organized crime family dead to rights before we did, but I 
could not get that information. There were Wall Street Journal 
reporters who knew more about Michael Milken than we did, and 
we could not get that information. But we managed to prosecute 
those cases.
    There are, as we all know, many investigative techniques. 
Subpoenaing reporters for their sources is not the only way to 
prosecute a case. There has been some talk here about, you 
know, the requirement to avoid shielding people from these 
prosecutions or shielding people from the clutches of the 
Government. That does not happen just because you do not get 
information from a source. You undertake other investigative 
techniques.
    So from a prosecutor's perspective, I think the bill does 
no more than codify the Department of Justice's existing 
policy. The one difference, as, Mr. Chairman, you remarked and 
as the Deputy Attorney General remarks, is that judges are now 
involved. That is true. Judges are involved, but, of course, 
judges are involved in many respects in this situation and in 
many others. We rely on judges to make very complicated 
decisions about balancing tests. We require that in many areas 
of law. We require it every day. Judges decide whether 
prejudice outweighs probative value, a very subjective test.
    I recall a judge who taught himself patent law and 
electrical engineering to decide a case, wrote a 300-page 
opinion full of circuit diagrams.
    That is the sort of thing that this Committee knows better 
than anyone else. You put judges on the bench who have that 
ability, and I do not really understand the argument that 
judges are incapable of deciding these questions.
    So I think from a prosecutor's perspective, this bill will 
help. It will make the law more uniform. It will make 
prosecutors more able in an appropriate case to go to a court 
and seek a reporter's sources, and the judge will have 
something to hang his hat on, will have a bill, will have text, 
will not be left with vague First Amendment arguments about 
which people differ.
    From the defense perspective, the bill is also an 
improvement. There is explicit recognition of a criminal 
defendant's potential need for this information and for the 
needs of a party in civil or administrative litigation. And, of 
course, it is applicable to all Federal agencies, as, Mr. 
Chairman, you remarked, and not just the Department of Justice.
    So, in the end, I do not think this is an issue that should 
divide the Department of Justice and other prosecutors from 
defense counsel. Information is not always desired by the same 
people. As Mr. Schwartz said, sometimes private litigants want 
the information. Sometimes the Department of Justice wants the 
information. There should be a test, there should be judges 
administering the test, and I think this bill draws a line 
which is appropriate. You know, as was said, you cannot make 
everyone happy. There can be interpretation, much easier with a 
statute than with a constitutional bill. And so I think this 
bill in the end will improve the state of the law and will give 
both sides, both people who want the information in an 
appropriate case and the press, which does not want this 
information revealed in an inappropriate case, standards to go 
on.
    I want to particularly remark with respect to the Deputy 
Attorney General's statement that the Department of Justice has 
a great record in the last 15 years, I think they do. But my 
memory goes back 30, and there was a time when Attorneys 
General and Deputy Attorneys General thought they knew better 
than anyone else what the law should be and were indicted and 
cast out of office for it.
    Having judges decide these questions is something that goes 
deep in the fabric of this country and is the most appropriate 
way to deal with the issue.
    Thank you.
    [The prepared statement of Mr. Baird appears as a 
submission for the record.]
    Chairman Specter. Thank you, Mr. Baird.
    Mr. Baird, you have had extensive experience in the 
Department of Justice, but not, at least according to the 
resume I have seen here, in the national security field. Do you 
think your observations that the Department of Justice would 
not be prejudiced apply as well in the national security field?
    Mr. Baird. Well, you are right, Mr. Chairman. I am not an 
expert in the national security field. I see, though, that the 
bill has exceptions in the national security area, and the only 
thing I understood the Department of Justice to say in response 
is that they did not want judges to make the decisions; they 
wanted to make the decisions themselves. And it seems to me 
judges have made decisions, as I think Mr. Olson mentioned, in 
the FISA context, in many other national security-related 
contexts. It has not been my experience, either on the defense 
or the prosecution side, that judges are incapable of making 
hard decisions using balancing tests. Quite the reverse.
    Chairman Specter. Mr. Schwartz, there are some 49 States 
and the District of Columbia which afford some privilege to 
reporters. Are the interests of your clients prejudiced in 
those States?
    Mr. Schwartz. In some of them. There was a situation in 
California--and it is not a client of mine--where a company was 
told that they ought to polygraph their employees as an 
alternative source to seeking things from a reporter. They were 
not a client. And I do not think that is a very reasonable 
rule. It is an overly broad privilege.
    Most of the rules are fine. They have three factors: Is it 
relevant--
    Chairman Specter. Well, you have to cope with reporters' 
privilege almost everywhere in the United States. Are you 
getting along?
    Mr. Schwartz. Well, things would be more difficult if this 
was added to the mix because States might copy it. They tend to 
do that. And there is something in the mix of this standard 
that I really have not seen elsewhere, and it is beyond the 
three normal parts. You usually have relevancy. Is it relevant? 
Is there a reasonable alternative source? If there is, you are 
supposed to seek it. And how central is it to the case?
    But in addition here, in the private sector area there is a 
Department of Justice guideline which has really nothing to do 
with private litigation where a judge has to weigh public 
interest against public interest. And we do not face that 
anywhere, as far as I know, and that is one of the reasons I am 
here today. It is an additional barrier that is just not in 
standard evidence law or anyplace. It may be relevant and 
important with governmental things, the things that other 
witnesses are testifying about today. But it certainly not in 
the private sector--
    Chairman Specter. Mr. Schwartz, I am going to have to move 
on.
    Mr. Schwartz. OK, sure.
    Chairman Specter. Professor Clymer, do you think the 
incarceration of Judith Miller was appropriate?
    Mr. Clymer. I do not know enough facts to answer that 
question, but what I would say about this is that I think that 
is the wrong question to ask. And the reason I think it is the 
wrong question to ask is because the issue before this body is 
not should we give special privileges to reporters so that they 
can disobey lawful court orders. The question we should ask is: 
Will this piece of legislation increase the flow of information 
to the public through the news media?
    If we are going to privilege reporters, it is not because 
we are concerned about someone, a professional like Judith 
Miller, having to go to jail. It is because we are concerned 
whether that is going to have an effect on the flow of 
information.
    So although I can certainly sympathize with Judith Miller, 
a professional trying to do her job, having to go to jail, she 
went to jail for failing to comply with a lawful court order. 
And the real question is: If we change the law to allow her not 
to go to jail, not have to comply with a court order, is that 
going to increase the flow of information to the public? And I 
think the answer ultimately is no.
    Chairman Specter. Well, up until your answer, I thought it 
was a pretty good question to ask.
    [Laughter.]
    Chairman Specter. But maybe I am wrong.
    Mr. Olson, on a matter of oversight, would this bill have 
resulted in a different result in the Judith Miller 
incarceration?
    Mr. Olson. I think it may have, because as we are learning 
now through reports in the newspapers with respect to when that 
information was given to journalists and the memory of the 
journalists seemed to all differ from one another, and when the 
special prosecutor or whatever name is given to Mr.--
    Chairman Specter. My time is almost up, and I want to put 
one more question to you. You have had extensive experience in 
the Department of Justice, and I have asked the Deputy Attorney 
General to respond to that question by somebody who was not 
recused. What are the parameters for discharging a special 
prosecutor? Whereas, in this case we have it fairly well 
established that there was no national security issue involved, 
and it has even been suggested that there was no crime 
involved, we have had some independent counsel cases which have 
gone on for a decade. What are the parameters for evaluating 
the special prosecutor's conduct, say, in the Miller matter and 
in the investigation generally, which has led to the 
prosecution of Lewis Libby?
    Mr. Olson. Well, that would be a very long answer. I think 
that if you do that oversight, you are going--
    Chairman Specter. There is no time limit on the answer, 
just on the question.
    Mr. Olson. If you do that oversight, you are going--in the 
first place, this appointment was not under the independent 
counsel statute. This appointment of Mr. Fitzgerald was under 
the inherent authority by the Attorney General, which is set 
forth in a statute to delegate any of the functions in the 
Department of Justice to anybody that the Attorney General 
wants to do. So the Attorney General here has the power to 
dismiss and remove this special prosecutor at his pleasure.
    Chairman Specter. Would cause be required?
    Mr. Olson. Not as I understand the decision by the Attorney 
General to do this delegation in the first place. I think it is 
under a statute, 28 U.S.C. 505 or something like that, that 
allows the Attorney General to delegate any of the authority in 
the Department of Justice to any other person in the Department 
of Justice. So I do not think cause would be required. It is a 
political problem that, you know, if there is going to be a 
dismissal.
    But to get back to your question, it would seem to me you 
might start with the concept of when the appointment was made 
and how much collectively was known with respect to what was 
the nature of the crime. I think you asked in your question 
something about whether or not the remainder of the prosecution 
at that interval was necessary to determine whether or not 
national security was implicated, whether a covert agent 
fitting the standard of that particular statute was involved, 
and whether--and you made the point in your earlier question. 
It is one thing to subpoena reporters with respect to national 
security concerns. It is another when it is the whole range of 
other crimes in the Federal statutes. And those are things that 
this statute would address by requiring some concentration on 
the need for it, the importance of the information from the 
reporter, whether the need for the information from the 
reporter would outweigh the public interest that is embodied in 
the First Amendment and so forth. So that would be a relevant 
question, but I think that there would be a lot of other things 
that you would want to ask as well.
    Chairman Specter. Thank you very much, Mr. Olson.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman.
    Mr. Olson, let me ask you, would you agree or stipulate 
that Paul McNulty is a knowledgeable and honest and expert 
public servant on the matters to which he testified today?
    Mr. Olson. Absolutely. I have the greatest respect for Paul 
McNulty.
    Senator Kyl. I knew you did and that you would. It seems to 
me there is a direct contradiction between what you say and 
what he says. In your statement you say, ``The Act does not 
compromise national security or burden law enforcement 
efforts.'' In view of his testimony to the contrary, can you 
really make that broad a statement?
    Mr. Olson. Well, I believe that a lot of attention has been 
given to that issue, and I think you pointed this out in your 
questions--or maybe Senator Schumer did, between the earlier 
version of this statute, which was the subject of testimony 
last year, and there were questions--I was here for that 
testimony and--
    Senator Kyl. Forget about that. My earlier questions to him 
were all from the current version of the statute.
    Mr. Olson. Yes.
    Senator Kyl. Which elicited a response from him that there 
were indeed problems.
    Mr. Olson. I respectfully disagree. I think that the issues 
have been addressed in Section 9. What I think Mr. McNulty did 
not acknowledge is that there is going to be judicial analysis 
of this process, anyway. The Department standards do not 
require the Department to go to a judge. But what is going to 
happen is the reporter is going to decline to respond to the 
subpoena. He is going to make a motion to quash. There is a 
going to be a motion before a judge to hold the reporter in 
contempt for not responding to the subpoena, and it is going to 
be before a judge. So a judge is going to be considering these 
questions: whether there is a common law privilege, whether 
there are First Amendment implications. And the Department is 
going to say it is a national security case and it is very 
important.
    And so I think Mr. McNulty is incorrect, respectfully, 
because I think these matters are going to be before a judge 
anyway. And judges do consider national security considerations 
when they deal with search warrants, under Title III and FISA.
    Senator Kyl. You know our time constraints here.
    Mr. Olson. Yes.
    Senator Kyl. This statute, I think you would have to 
concede, would make it more difficult, though, given the fact 
that it statutorily establishes a privilege beyond the current 
common law privilege, or I gather there is no need for it.
    Mr. Olson. Well, I am not sure that it does. As the 
Chairman pointed out, there are four or five circuits that 
recognize some level of common law privilege. There are several 
circuits that do not.
    Senator Kyl. So you are not sure that this goes beyond the 
currently recognized privilege.
    Mr. Olson. Well, the problem, as I pointed out, is there is 
a hodgepodge and it is not clear what the standards are. The 
Supreme Court ultimately would have the power to determine that 
there were a common law privilege. We urged the Supreme Court 
to take the case in--the Wen Ho Lee case on behalf of a 
reporter, Pierre Thomas. It may be that the Supreme Court might 
recognize a common law privilege, and then the question is: 
Should it all be decided by judges, or should the Congress of 
the United States exercise its judgment as to the standards? 
And I think the case is strong that Congress should--
    Senator Kyl. Let me ask you, Professor Clymer, the third or 
fourth point that you made, Professor, was that there are so 
many--and it follows directly what Mr. Olson just said. The 
legislation is subject to so many tests and exceptions that a 
reporter cannot guarantee the privilege to the source at the 
time he makes it.
    Would you expand on that a little bit and explain why in 
your view that renders this a difficult privilege to implement?
    Mr. Clymer. The problem is this: The benefits from the 
privilege have to occur when the conversation occurs between 
the reporter and the source, because if the objective of the 
legislation is to increase the free flow of information, that 
is when the information flows. And what the source, if he is 
reluctant to give the information, wants is a guarantee or an 
assurance that his identity will remain confidential.
    Under present law, clearly, you cannot make that assurance. 
But under this legislation, you cannot make that assurance 
either because you do not know at the time you have that 
conversation which exception may apply, who is going to ask for 
the information, whether it will be in Federal or State court, 
or what a judge is going to do under one of these open-ended, 
unstructured balancing tests that are in this legislation.
    And, by the way, I think it is worth pointing out that 
these balancing tests do not appear in the Federal regulations 
that DOJ follows. They do not appear in the standard common law 
tests. These balancing tests that are in this legislation are, 
to my knowledge, brand new. I have not seen them elsewhere.
    And so this creates another layer of uncertainty so the 
reporter cannot give the sorts of assurances. So what we get 
from this legislation is all the costs--additional litigation, 
loss of the truth--without the benefits because the reporter 
still cannot give certain guarantees of confidentiality.
    Senator Kyl. Thank you very much. With no more time here, I 
will turn it back.
    Chairman Specter. Do you want to proceed with another 
question or two, Senator?
    Senator Kyl. Well, why don't I do this. I had two or three 
questions of Mr. Olson, one of Mr. Schwartz, and I think one 
more of Mr. Clymer. So what I will do is submit those for the 
record.
    Chairman Specter. OK. Thank you very much, Senator Kyl.
    Senator Brownback?

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE 
                           OF KANSAS

    Senator Brownback. Thank you, Mr. Chairman. I apologize for 
not being here at the outset or hearing the testimony of the 
witnesses. I was in another hearing and presiding earlier. 
Thank you, though, for holding the hearing, and it is an 
important hearing.
    I want to step back on this because there seems to me to be 
a troubling confluence of things that are happening right now, 
and we are trying to address the things that--a lot of the 
things that I am concerned about do not seem like we are 
addressing here. We have got these security leaks that are 
taking place, and in my estimation, in this war on terrorism 
probably our most valuable tool is information, is our ability 
to gather information. And we need this in this war on 
terrorism.
    I used to chair the Immigration Subcommittee, and one of 
the things that shocked me was the number of legal entries we 
have got a year into the United States. We have nearly 250 
million legal entries a year into the United States. And 
somebody--probably several people in that group seek to do us 
harm. But it is not like finding a needle in a haystack. This 
is a needle in a hay field. We have got to be able to really 
get some information, lawfully, legally, and in ways that the 
American public support it. And yet what we are seeing is more 
national security leaks taking place.
    And then recently--and I do not know that this ties into 
it, but it really strikes me as odd that in the Judith Miller 
case we have people being pursued for some period of time, her 
going to jail, and then somebody here 3 years later holds his 
hand up and says, ``Well, OK, yes, I am the one that did 
this.'' And I know the gentleman that said that, and this just 
really strikes me as odd taking place at this point in time.
    I appreciate the panelists and their thoughtfulness in 
putting forward their testimony, but my question to you is: 
Given that atmosphere and our need to maintain security in the 
United States today in a lawful fashion, a fashion that the 
public supports, are there things that we should be doing to 
further penalize leakers of national security information, to 
say, you know, OK, reporters should be able to have access to 
legitimate knowledge? But if somebody is putting out national 
security information, there needs to be a legitimate penalty 
with this, a significant penalty with this, if this is wrong to 
put out.
    This is a learned panel, and this is not what you came here 
to testify about, but I am sure you have thought about this 
angle of it as well. Would anybody care to comment about that?
    Mr. Clymer. Can I make two observations, Senator?
    Senator Brownback. Yes.
    Mr. Clymer. One is that I think this legislation, at least 
in some cases, will do exactly the opposite of what you 
suggest. In other words, it will immunize people who make those 
sorts of leaks, because it will require, in order to do an 
investigation of those people, that the Department of Justice 
has to satisfy certain requirements that a judge may determine 
for one reason or another are not satisfied, thereby preventing 
access to information that will result in prosecution of that 
sort of person. So I guess that is the first observation to 
make because I think that in some respects this legislation 
goes exactly in the opposite direction of what you are talking 
about.
    The second observation is I think your concerns are 
legitimate, but I think they should be expanded. There are 
leaks of nonclassified information that could be extremely 
harmful to law enforcement in a variety of ways that are not as 
strongly addressed in this legislation as leaks of classified 
information. And it seems to me that what would be a better 
approach would be to have any privilege not applicable 
whatsoever if the disclosure of the information itself 
constitutes a Federal crime, be it classified information, 
grand jury information, or other sorts of information the 
disclosure of which violates Federal criminal law.
    Senator Brownback. And the disclosure of which by the 
individual leaking and the newspaper entity that discloses it?
    Mr. Clymer. Well, I do not think you have to reach the 
conclusion that the newspaper itself is engaged in criminal 
activity, as long as the disclosure to the newspaper is a 
violation of the law. I think Congress has made determination 
that that is something that is very serious and we should not 
effectively immunize people who do that by foreclosing any 
effective investigation of the crime.
    Mr. Baird. Senator, I agree with the last statement on 
penalties. You could create legislation with more penalties. 
But I disagree with the statement that this legislation 
immunizes leakers. I think as a former prosecutor, there are 
many ways to investigate crime, and the first resort is never 
to go to a reporter and ask for sources. These are crimes--I 
agree with you, Senator, that these are serious crimes and they 
should be investigated, and they can be investigated. There are 
many ways to investigate them beyond asking a reporter for his 
sources.
    Senator Brownback. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Brownback.
    Senator Kyl has asked that I include in the record a letter 
dated June 21, 2006, from Bruce Josten of the Chamber of 
Commerce to me and a letter from a group of trade associations 
dated today, September 20th, to Senator Leahy and myself, and 
they will be included in the record.
    We thank you very much for coming in, gentlemen. Staff has 
advised me, on an unrelated matter, that Mr. Schwartz has a 
good imitation of me.
    Mr. Schwartz. [Imitating Chairman Specter] I don't think I 
can do that here, Senator. That would just be wrong.
    Chairman Specter. Well, I have to agree with you about 
that.
    [Laughter.]
    Chairman Specter. We are concluded.
    [Whereupon, at 11:02 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]


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