[Senate Hearing 109-1030]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 109-1030
 
       REPORTERS' PRIVILEGE LEGISLATION: ISSUES AND IMPLICATIONS 

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 20, 2005

                               __________

                          Serial No. J-109-31

                               __________

         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
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director



























                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................    97
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     2
    prepared statement...........................................    98
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                               WITNESSES

Abrams, Floyd, Partner, Chaill, Gordon & Reindel, LLP, New York, 
  New York.......................................................    17
Cooper, Matthew, White House Correspondent, Time Magazine Inc., 
  Washington, D.C................................................    10
Dodd, Hon. Christopher J., a U.S. Senator from the State of 
  Connecticut....................................................     5
Levine, Lee, Founding Partner, Levine, Sullivan, Koch & Schulz, 
  LLP, Washington, D.C...........................................    19
Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana.     3
Pearlstine, Norman, Editor-in-Chief, Time Inc., New New, New York    13
Pence, Hon. Mike, a Representative in Congress from the State of 
  Indiana........................................................     8
Safire, William, Political Columnist, New York Times, New York, 
  New York.......................................................    15
Stone, Geoffrey R., Harry Kalven, Jr., Distinguished Service 
  Professor of Law, University of Chicago Law School, Chicago, 
  Illinois.......................................................    21

                         QUESTIONS AND ANSWERS

Responses of Floyd Abrams to questions submitted by Senators 
  Leahy and Durbin...............................................    43
Responses of Matthew Cooper to questions submitted by Senator 
  Durbin.........................................................    51
Responses of Lee Levine to questions submitted by Senators Durbin 
  and Leahy......................................................    52
Responses of William Safire to questions submitted by Senator 
  Durbin.........................................................    72
Responses of Groffrey R. Stone to questions submitted by Senator 
  Leahy..........................................................    75
Questions submitted to Mr. Comey by Senators Leahy and Durbin 
  (Note: Responses to written questions were not available at 
  time of printing.).............................................    77

                       SUBMISSIONS FOR THE RECORD

Abrams, Floyd, Partner, Chaill, Gordon & Reindel, LLP, New York, 
  New York, prepared statement...................................    79
Comey, James B., Deputy Attorney General, Department of Justice, 
  Washington, D.C., prepared statement...........................    85
Cooper, Matthew, White House Correspondent, Time Magazine Inc., 
  Washington, D.C., prepared statement...........................    92
Levine, Lee, Founding Partner, Levine, Sullivan, Koch & Schulz, 
  LLP, Washington, D.C., prepared statement......................    99
Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana, 
  prepared statement.............................................   115
Pearlstine, Norman, Editor-in-Chief, Time Inc., New New, New 
  York, prepared statement.......................................   121
Pence, Hon. Mike, a Representative in Congress from the State of 
  Indiana, prepared statement....................................   138
Safire, William, Political Columnist, New York Times, New York, 
  New York, prepared statement...................................   143
Stone, Geoffrey R., Harry Kalven, Jr., Distinguished Service 
  Professor of Law, University of Chicago Law School, Chicago, 
  Illinois, prepared statement...................................   148
Walden, Hon. Greg, a Representative in Congress from the State of 
  Oregon, prepared statement.....................................   166


       REPORTERS' PRIVILEGE LEGISLATION: ISSUES AND IMPLICATIONS

                              ----------                              


                        WEDNESDAY, JULY 20, 2005

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:37 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, DeWine, Graham, Cornyn, Leahy, 
Kennedy, Biden, Feinstein, Feingold, Schumer, and Durbin.

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

    Chairman Specter. Good morning, ladies and gentlemen. The 
Judiciary Committee will now proceed with our hearing on the 
journalist shield law in the context of legislation which has 
been introduced by Senator Lugar on the Senate side and 
Representative Pence on the House side, and Senator Dodd has 
another bill.
    We regret the slight delay in starting these proceedings. 
Senator Leahy and I have been meticulous in beginning at 9:30 
on the button, and we are 6 minutes late this morning because 
of the extraordinary circumstances where we had to work through 
some problems on the pending nomination of Judge Roberts. And 
this is a complicated day, as most days are in the Senate, but 
we are looking at a hearing which is, in my opinion, a very 
important hearing on what is the appropriate rule for limiting 
or protecting sources of journalists on grand jury 
investigations.
    Our focus here will be on whether reporters should be 
granted a privilege to withhold information from the Federal 
courts, and it arises in the celebrated case on an alleged leak 
where two reporters have been held in contempt and one reporter 
has been jailed, as we all know. The scope of this hearing does 
not include the issue of the leak but the legislation which we 
are going to be considering.
    The Supreme Court of the United States in a 1972 decision, 
Branzburg v. Hayes, made a determination that the press' First 
Amendment right to publish information does not include the 
right to keep information secret from a grand jury 
investigating a criminal matter and the common law did not 
exempt reporters from such a duty. That, of course, leaves it 
within the purview of the Congress to have a reporters' 
privilege if the Congress should decide to do so as a matter of 
public policy.
    It is worth noting that some 31 States and the District of 
Columbia have enacted statutes granting reporters some kind of 
privilege. We are all well aware of the tremendous contribution 
of a free press in our society and so many lives in ferreting 
out wrongdoing, in exposing Government corruption, in exposing 
corruption in the private sector, and we are mindful of 
Jefferson's famous dictum that if he had to make a choice 
between a Government without newspapers or newspapers without 
Government, he would choose newspapers without Government.
    So we have some very, very lofty values which are at stake 
here on the value of a free press and what the free press has 
contributed to this country contrasted with the rights of a 
defendant in a criminal case. And one circuit, the Sixth 
Circuit, has suggested that it would be a denial of 
constitutional rights to a criminal defendant if that defendant 
did not have access to information in a certain context. So 
these are weighty values indeed.
    We have many witnesses today, so I am going to curtail my 
opening statement to less than the customary 5 minutes.
    Chairman Specter. We have just been advised that Deputy 
Attorney General James Comey will not be with us. We have his 
statement and the Government's position, and we have been 
advised that the House is taking up the PATRIOT Act today, and 
there is a House conference on it, and he is the key witness, 
the key Government official to comment about that.
    [The prepared statement of Mr. Comey appears as a 
submission for the record.]
    Chairman Specter. I now yield to my distinguished 
colleague, the Ranking Member, Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Well, thank you, Mr. Chairman, and I thank 
you for holding this hearing. We have had a small number of 
cases that have gotten significant national attention, but the 
question of whether or not that is a form of privilege for 
journalists has vexed us since Branzburg v. Hayes that was 
decided by the Supreme Court in 1972. Since that time, 31 
States and the District of Columbia have enacted statutes 
granting some form of privilege to journalists. We have tried 
from time to time to codify a reporters' privilege in Federal 
law, but those efforts have failed, in part because supporters 
of the concept found it difficult to agree on how to define the 
scope of what is meant to be a journalist. And now with 
bloggers participating fully in the 24-hour news cycle, we have 
very similar challenges today.
    I have long been a champion of a vibrant and an independent 
press, even when at times they have skewered me. My interest 
comes honestly and early. I am the son of a Vermont printer who 
was a struggling publisher of a weekly newspaper in Waterbury, 
Vermont. In my years in the Senate, I have tried to fulfill the 
ideals of my father of fighting for a free press and a greater 
transparency in Government. I have long championed the Freedom 
of Information Act to shine a light on Government. Earlier this 
year, I introduced legislation with Senator Cornyn to improve 
implementation of that critical legislation. We are referred to 
as ``the political odd couple'' in this regard. I think not at 
all, this is something that should unite both conservatives and 
liberals to have more sunshine on what our Government does.
    Open Government goes hand in hand with freedom of the 
press. But I also know as a former prosecutor that our 
democracy is nothing without a healthy respect for the law. We 
have to weight the public interest in First Amendment press 
protection and the public interest in solving crime.
    The hearing was not called to address the Valerie Plame 
leak case in particular, but it is impossible to imagine that 
the investigation is not going to be discussed today. We have 
heard several supporters of a privilege recognizing the fact 
that the Plame case is not particularly sympathetic to their 
cause because it involves an alleged national security leak 
from the highest level of Government. Then I think we should 
look at all the different areas where a privilege might come 
forth.
    I want to commend the members that have done the hard work 
of drafting this legislation, but also the witnesses who come 
here with a broad variety of views on this.
    I was concerned when we heard that Deputy Attorney General 
Comey had canceled his appearance. I wanted to ask him why the 
administration opposes these shield laws. I would like to know 
particularly why. Is it just in this instance, in the current 
issues before us? Or is it overall? And I think that we leave a 
big gap without that.
    But, Mr. Chairman, I will follow your example. I will put 
my whole statement in the record. I would like to hear what 
these witnesses say.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. Well, thank you very much, Senator Leahy.
    Our first witness is Senator Richard Lugar. Elected in 
1976, very distinguished record before coming to the United 
States Senate, as the Boy Mayor of Indianapolis, and even more 
distinguished record since coming to the Senate, where he now 
chairs the Foreign Relations Committee. He has introduced 
Senate bill 1419, which is a beginning point of our 
discussions.
    I think it is worth noting just on an introductory basis 
because I do not intend to ask Senator Lugar any questions--I 
am not going to run that risk--that his bill and Representative 
Pence's bill is somewhat broader than the attorney-client 
privilege and the physician-patient privilege and goes beyond 
news gathering. But it is a very important piece of legislation 
which is pending and addresses a subject which is very, very 
timely.
    Senator Lugar, thank you for being with us today, and we 
look forward to your testimony.

  STATEMENT OF HON. RICHARD G. LUGAR, A UNITED STATES SENATOR 
                   FROM THE STATE OF INDIANA

    Senator Lugar. Well, thank you, Mr. Chairman, and I ask 
that my full statement be submitted for the record.
    Chairman Specter. It will be made a part of the record, and 
I know it is not necessary to tell panel one about the 5-minute 
limitation. You men preside all the time, and you impose it 
rigorously.
    Senator Lugar. Mr. Chairman, Ranking Member Senator Leahy, 
Senator Cornyn, Senator Feinstein, I appreciate the privilege 
you have given to me and to my colleagues, Senator Dodd and 
Congressman Pence, to testify on the need for a Federal media 
shield law.
    I believe that the free flow of information is an essential 
element of democracy. In order for the United States to foster 
the spread of freedom and democracy globally, it is incumbent 
that we first support an open and free press nationally here at 
home. The role of the media as a conduit between Government and 
the citizens its serves must not be devalued.
    Unfortunately, the free flow of information to citizens of 
the United States is inhibited. Over two dozen reporters were 
served or threatened with jail sentences last year in at least 
four different Federal jurisdictions for refusing to reveal 
confidential sources. Judith Miller sits in jail today because 
she refused to release the name of her source or sources for a 
story she did not write. Matt Cooper, who will share his story 
today, was likewise threatened with imprisonment but is not in 
jail because of a release from his obligation to his 
confidential source. I fear the end result of such action is 
that many whistleblowers will refuse to come forward and 
reporters will be unable to provide our constituents with 
information they have a right to know.
    In 1972, the America held in Branzburg v. Hayes that 
reporters did not have an absolute privilege as third-party 
witnesses to protect their sources from prosecutors.
    Since Branzburg, every State and the District of Columbia, 
excluding Wyoming, has created a privilege for reporters not to 
reveal their confidential sources. My own State of Indiana 
provides qualified reporters an absolute protection from having 
to reveal any such information in court.
    The Federal courts of appeals, however, have an incongruent 
view of this matter. Each circuit has addressed the question of 
the privilege in a different manner. Some circuits allow the 
privilege in one category of cases, while others, like the 
Seventh Circuit, have expressed skepticism about whether any 
privilege exists at all.
    Congress should clarify the extraordinary differences of 
opinion in the Federal courts of appeals and the effect it has 
on undermining the general policy of protection already in 
place among the States. Likewise, the ambiguity between 
official Department of Justice rules and unofficial criteria 
used to secure media subpoenas is unacceptable. There is an 
urgent need for Congress to state clear and concise policy 
guidance.
    Senator Dodd and I have introduced legislation in the 
Senate that provides the press the ability to obtain and 
protect confidential sources. It provides journalists with 
certain rights and abilities to seek sources and report 
appropriate information without fear of intimidation or 
imprisonment. This bill sets national standards based on 
Department of Justice guidelines for subpoenas issued to 
reporters by the Federal Government. Our legislation promotes 
greater transparency of Government, maintains the ability of 
the courts to operate effectively, and protects the 
whistleblowers that identify Government or corporate misdeeds 
and protects national security.
    It is also important to note what this legislation does not 
do. The legislation does not permit rule-breaking, give 
reporters a license to break the law, or permit reporters to 
interfere with crime prevention efforts. Furthermore, the Free 
Flow of Information Act does not weaken national security. We 
have carefully constructed a three-part test that permits the 
revelation of a confidential source in any manner where 
disclosure would be necessary to prevent imminent and actual 
harm to the national security. The national security exception 
and continued strict standards relating to classified 
information will ensure that reporters are protected while 
maintaining an avenue for prosecution and disclosure when 
considering the defense of our country.
    Recently, Reporters Without Borders reported that 107 
journalists are currently in jail around the world, including 
32 in China, 21 in Cuba, and 8 in Burma. This is not good 
company for the United States of America. Global public opinion 
is always on the lookout to advertise perceived American double 
standards.
    I believe that passage of this bill would have positive 
diplomatic consequences. This legislation not only confirms 
America's constitutional commitment to press freedom, it also 
advances President Bush's American foreign policy initiatives 
to promote and to protect democracy.
    When we support the development of free and independent 
press organizations worldwide, it is important to maintain 
these ideals at home.
    I thank the Chairman, the Ranking Member, and this 
distinguished Committee for holding this timely hearing. I look 
forward to working with each of you to ensure that the free 
flow of information is unimpeded.
    [The prepared statement of Senator Lugar appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Senator Lugar. We 
turn now to Senator Dodd.
    Representative Pence, we pay a lot of attention to 
seniority around here.
    [Laughter.]
    Chairman Specter. He has been here longer, he has been on 
the Hill longer than you have. He was elected to the United 
States Senate in 1980, in a year that brought 18 freshmen 
Senators, and 50 percent of his class still remains; whereas, 
Senator Grassley, a member of this Committee, and I only have 
one-eighth of our class. So his 50 percent to our 12 percent is 
one of his many notable achievements.
    Nice to have you with us, Senator Dodd, and we look forward 
to your testimony.

STATEMENT OF HON. CHRISTOPHER J. DODD, A UNITED STATES SENATOR 
                 FROM THE STATE OF CONNECTICUT

    Senator Dodd. Thank you. Thank you very much, Mr. Chairman 
and Senator Leahy and Senator Cornyn, Senator Feinstein as 
well.
    Let me commend my colleague from Indiana. Senator Lugar has 
made an eloquent statement this morning in support of this 
legislation, and I am delighted to join him and join 
Congressman Pence and Congressman Boucher, who are principal 
sponsors of our companion bill in the House of Representatives.
    This is obviously an unusual occasion for several reasons 
to be here this morning. For one thing, this Committee's 
workload has gotten a bit heavier since about 9:00 p.m. last 
evening, and we appreciate that very much. And for another 
thing, it is not every day that public officials or elected 
officials get to examine the press. Usually it is the other way 
around. And I am sure my colleagues will agree that one of the 
great privileges of public life is regularly learning about 
one's shortcomings in the fine media organizations of our 
country. And while I say that with some dose of humor, there is 
a nugget of profound truth to it as well, Mr. Chairman.
    As you pointed out--and I think it is worthy of repeating--
Jefferson, of course, once said that if we were to choose 
between a free country and a free press, he would choose the 
latter. He understood that nothing was more important to a free 
people than the free flow of information.
    An informed citizenry is the first requirement of a free 
and self-governing people. I think James Madison said it best 
of all, however, Mr. Chairman. He said, ``Popular government 
without popular information or the means of acquiring it is but 
a prologue to a farce, a tragedy, or perhaps both.''
    Armed with knowledge, our people can govern themselves and 
hold accountable their leaders in public and in private life. 
Today, the principle of a well-informed citizenry as the 
cornerstone of self-government is at risk, in our view. This 
morning, as we speak, a journalist named Judith Miller sits in 
a prison cell. Another journalist, Matt Cooper, who sits behind 
me, whose testimony you are going to hear shortly, is with us 
and not in prison with Ms. Miller only by virtue of the 
particular circumstances of his case.
    Some two dozen other journalists stand subpoenaed or 
prosecuted in our country at this hour. And what did they do to 
earn these legal burdens and sanctions? Nothing more, in my 
view, than doing their job. They received information from 
citizens based on a pledge to keep the identity of those 
citizens confidential, and they honored that pledge. And for 
doing their jobs, these men and women face litigation, 
prosecution, and in some cases incarceration.
    We have introduced legislation together to protect the free 
flow of information in our society. This legislation is not 
about conferring special rights and privileges on members of 
the Fourth Estate. To the contrary, it is intended to protect 
the rights of all citizens to be informed and to inform, 
including by speaking with journalists in confidence.
    The bill is hardly radical in concept. It is based on 
Justice Department guidelines and on statutes and/or rules that 
currently exist, Mr. Chairman, in 49 States and the District of 
Columbia. Those State statutes and rules would not be pre-
empted. Instead, the bill would establish a uniform Federal 
standard for Federal cases involving journalists and their 
sources. Currently, because there is no such standard, there is 
confusion and incongruity among Federal courts. That makes it 
very, very difficult for a working journalist to know the rules 
of the road when interviewing witnesses and contemplating 
offers of confidentiality.
    Our legislation would balance the legitimate and often 
compelling interests in law enforcement with the critical need 
in a free society to protect the free flow of information. It 
would achieve this balance by protecting the confidentiality of 
sources while at the same time allowing courts to compel 
journalists to produce information about wrongdoing if that 
information is essential to an investigation and could not be 
obtained from other sources. And revisions we have made to our 
bill would go further, allowing courts to compel the disclosure 
of sources in those cases where, and I quote, ``necessary to 
prevent imminent and actual harm to national security.''
    Mr. Chairman and members of the Committee, the overriding 
principle we seek to establish with our legislation is rooted 
in our Constitution and in common sense. A free country cannot 
exist without a free press. Forcing journalists to reveal their 
sources must be a last, not a first, resort for prosecutors and 
civil litigants. Imagine for a moment what would happen if 
citizens with knowledge of wrongdoing would not or could not 
come forward and speak confidentially with members of the 
press. Serious journalism would virtually cease to exist in my 
view. Wrongdoing would not be uncovered. We would never have 
learned about the crimes known as Watergate or the massive 
fraud called Enron but for the willingness of sources to speak 
in confidence with reporters.
    When journalists are hauled into court by prosecutors, when 
they are threatened with fines and imprisonment if they do not 
divulge the sources of their information, then we are entering 
a dangerous territory indeed for a democracy because that is 
when citizens will fear prosecution simply for stepping out of 
the shadows to expose wrongdoing. When that happens, the 
information our citizens need to govern will be degraded, 
making it more and more difficult to hold accountable those in 
power. And when the public's right to know is threatened, then 
all other liberties that we hold dear are threatened in my 
view.
    We are under no illusions, Mr. Chairman, as to the 
difficulty of our task in advancing this legislation. The 
Justice Department raises several concerns about our bill, and 
we have addressed them, I think. We believe we have already 
addressed them with the revisions contained in Senate bill 
1419. Most importantly, as I mentioned a moment ago, we qualify 
the protection of sources where necessary to prevent imminent 
harm to the national security.
    You may hear the Department, nevertheless, claim, as it 
does in written testimony, that the legislation would pose a 
great threat to public safety. If that is so, then wouldn't we 
expect to see great threats to public safety in those States 
that have shield laws which are at least as protective as the 
shield law that we propose? Indiana, which my colleague Senator 
Lugar has already mentioned, has an absolute protection for 
reporters from having to reveal any information in court. 
Senator Lugar and Congressman Pence will correct me if I am 
wrong, I am sure, but I am unaware that Indiana is beset with 
any unusual lack of public safety relative to other States.
    Moreover, if this legislation is harmful to law 
enforcement, as the Justice Department suggests, then why did 
34 State Attorneys General submit an amicus brief to the 
Supreme Court in the Miller and Cooper case, essentially 
arguing for a Federal shield law along the lines of what we 
have drafted?
    You may also hear the Department tell you that there is no 
need for Federal legislation in the absence of a showing that 
sources are drying up and that journalists are unable to 
conduct investigative reporting. I would respectfully, Mr. 
Chairman, direct the Committee's attention and the Department 
of Justice to page 3 of the testimony of Mr. Pearlstine. In it 
he says, and I quote, ``Valuable sources have insisted that 
they no longer trusted the magazine and that they would no 
longer cooperate on stories.''
    I would also direct the Committee and the Department to the 
June 30, 2005, edition of the Cleveland Plain Dealer, one of 
our nation's most respected newspapers. On that day, the paper 
announced that it was withholding publication of two stories, 
and I quote, ``of profound importance to the public.'' The 
stories are based on leaked information, and the paper does not 
want to take the risk that its journalists will be prosecuted 
to reveal their sources.
    Mr. Chairman and members of the Committee, I suggest that 
the standard for Federal legislation set by the Department of 
Justice itself has been met, and it is time to act, I think, to 
draft such legislation.
    I thank you for your patience in listening to me.
    Chairman Specter. Thank you very much, Senator Dodd.
    We turn now to Representative Pence, who has introduced 
companion legislation in the House, House bill 581. Thank you 
for coming over today, Representative Pence, and the floor is 
yours.

STATEMENT OF HON. MIKE PENCE, A REPRESENTATIVE IN CONGRESS FROM 
                      THE STATE OF INDIANA

    Representative Pence. Thank you, Chairman. Thank you for 
holding this hearing, and my gratitude extends, of course, to 
the Ranking Member and to all the distinguished members of the 
Senate Committee on the Judiciary. It is very humbling for me 
to be here and have the opportunity to address this Committee, 
and particularly to do so at the side of Senator Chris Dodd, 
and my Hoosier hero and mentor, Senator Richard Lugar.
    Enshrined in the First Amendment of the Constitution, we 
all know, are these words: ``Congress shall make no 
law...abridging the freedom of speech, or of the press.''
    The freedom of speech and the press form the bedrock of our 
democracy by ensuring the free flow of information to the 
public.
    Although Thomas Jefferson warned that, ``Our liberty cannot 
be guarded but by the freedom of the press, nor that limited 
without danger of losing it,'' today this freedom is under 
attack.
    As this city engages in a familiar clash along the fault 
lines of the politics of personal destruction, a much greater 
scandal languishes in a quiet prison cell in suburban 
Washington, D.C., in the sad image of an American journalist 
behind bars, whose only crime was standing up for the public's 
right to know.
    And Judith Miller is not alone.
    In the past year, nine journalists have been given or 
threatened with jail sentences for refusing to reveal 
confidential sources and at least a dozen more have been 
questioned or on the receiving end of subpoenas.
    Compelling reporters to testify, and in particular, 
compelling reporters to reveal the identity of confidential 
sources, intrudes on the news-gathering process and hurts the 
public.
    Without the assurance of confidentiality, many 
whistleblowers will simply refuse to come forward, and 
reporters will be unable to provide the American public with 
the information they need to make decisions as an informed 
electorate.
    But with all this focus on news gathering, it is important 
that we state clearly: Protecting a journalist's right to keep 
a news source confidential is not about protecting reporters; 
it is about protecting the public's right to know.
    As a conservative who believes in limited Government, I 
believe that the only check on Government power in real time is 
a free and independent press. And it was in that spirit that 
introduced the Free Flow of Information Act in the House of 
Representatives, along with the bipartisan support and 
cooperation of my colleague, Representative Rick Boucher. I 
also would acknowledge my profound gratitude for the efforts in 
the Senate of my colleagues on a similar measure.
    Our bill would simply set national standards for subpoenas 
issued to reporters by any entity of the Federal Government, 
and we truly believe that it strikes a proper balance between 
the public's interest in the free dissemination of information 
and the public's interest in law enforcement.
    In 1973, the Department of Justice adopted its Policy with 
Regard to the Issuance of Subpoenas to Members of the News 
Media. That policy has been in continuous operation for more 
than 30 years and sets standards that have to be met by Federal 
officials before the issuing of a subpoena to a news media in a 
Federal criminal or civil case. Our bill, it is important to 
state, uses the standards of that policy as a template for a 
Federal shield law that would apply to all Federal judicial, 
executive, and administrative proceedings, except where 
confidential sources are involved.
    In the case of confidential sources, the bill originally 
provided, as has been said, that a reporter could not be 
compelled to reveal a source. That language has been changed in 
legislation filed this Monday in the House and the Senate to 
allow for a qualified privilege only. Under our revised bill, a 
reporter cannot be compelling to reveal a source unless the 
disclosure of the identity of a source is necessary to prevent 
imminent or actual harm to national security.
    Legitimate questions were raised, Mr. Chairman, about our 
original draft, and we dialogued consistently with the 
Department of Justice and other outside organizations, and we 
feel that the revised version of our legislation strikes a 
careful balance. And while the Department of Justice has 
commented rather thoroughly on our first bill, we look very 
much forward to their thoughtful analysis of our revised 
version of the Free Flow of Information Act.
    There are other changes as well. My colleagues have pointed 
out that this legislation is already the law in 31 States, 
including Indiana. But I do want to acknowledge, as my 
colleague Senator Dodd said, that we recognize that it will not 
be easy for this Committee, particularly in the wake of last 
night's events, to move this legislation.
    Also, we find ourselves in the midst of an unfurling 
controversy. Nevertheless, it is my fervent hope and my prayer 
that this Committee and this Congress will see beyond our times 
and their controversies and seize the opportunity to develop 
clear national standards that will protect the news-gathering 
function and promote good Government.
    The Liberty Bell is inscribed with these ancient words: 
``Proclaim liberty throughout all the land unto all the 
inhabitants thereof.'' That is our charge, and I believe now is 
the time for this Congress to proclaim liberty, to reaffirm our 
commitment to a free and independent press. Nothing less than 
the public's right to know is at stake.
    [The prepared statement of Representative Pence appears as 
a submission for the record.]
    Chairman Specter. Thank you very much, Representative 
Pence.
    Does anybody on the panel have questions?
    [No response.]
    Chairman Specter. Good. Thank you all very much. We 
appreciate your being here.
    Chairman Specter. We will now call the panel with Mr. 
Matthew Cooper, White House correspondent for Time Magazine; 
Mr. Norman Pearlstine, Editor-in-Chief of Time; Mr. William 
Safire, New York Times Company, political columnist; Mr. Floyd 
Abrams, a leading expert on the First Amendment from Cahill, 
Gordon & Reindel; Mr. Lee Levine, Washington, D.C., firm of 
Levine, Sullivan, Koch & Schulz; and Professor Geoffrey Stone, 
Distinguished Professor of Law from the University of Chicago.
    Welcome, gentlemen. We will begin with Mr. Matthew Cooper, 
who has served as White House correspondent for Time Magazine 
since June of 2003, a post which he previously held for U.S. 
News & World Report. He has written the ``White House Watch'' 
column for the New Republic, been a national correspondent for 
Newsweek. During the 1980s, he was editor of the Washington 
Monthly. He has written for publications including the New York 
Times, the Washington Post, and the Los Angeles Magazine.
    Thank you for joining us here today, Mr. Cooper, to tell 
the Committee about your own personal experience in this very 
important matter. As I think all of you have been advised, all 
of the statements will be made fully a particular of the 
record, and we have limited the oral presentations to 5 minutes 
to give the maximum amount of time for questions and answers by 
the panel.

 STATEMENT OF MATTHEW COOPER, WHITE HOUSE CORRESPONDENT, TIME 
                MAGAZINE INC., WASHINGTON, D.C.

    Mr. Cooper. Thank you, Mr. Chairman, Senator Feinstein, 
Senator Graham, and Senator DeWine. I am honored to be here 
today in such distinguished company, especially with my boss, 
Norman Pearlstine, the editor-in-chief of Time Incorporated. I 
agree with his eloquent argument for some kind of national 
shield law.
    I do not intend, Mr. Chairman to discuss the ongoing 
investigation into the leak of a covert CIA agent or my role in 
it.
    Chairman Specter. We appreciate that very much.
    [Laughter.]
    Mr. Cooper. I do, too.
    What I do want to do is try to give the perspective of a 
regular working journalist of 19 years on what it is like to do 
one's job these days in the absence of a Federal shield law.
    But let me say, Mr. Chairman, first that I come here with 
real humility, not just because I am the only ink-stained 
wretch on this august panel, but because what we in the media 
are asking for is quite formidable, an exemption from some of 
the duties of citizenship. We are asking for a privilege that 
is not afforded to farmers or manufacturers. To be sure, 49 
States, through court rulings and statutes, have decided to 
give journalists, and thus the public, some form of legal 
protection, but it is still much to ask Congress to grant us a 
degree of Federal protection, and I think it behooves us in the 
media to do so humbly.
    But ask we do, and with good reason, I think. I do not have 
strong feelings about which statute makes the most sense and 
how the privilege should best be defined. But I do want to talk 
about how the rules of the road are, to put it mildly, quite 
confusing for a working journalist such as myself in the 
absence of any clear Federal standard.
    I might add this also applies to any public official, from 
the school board to the Senate, or from that matter from the 
grocer to the captain of industry who chooses to talk with the 
media using some degree of confidentiality.
    Right now, if I pick up the phone and call a Senator or his 
or her staff or a civil servant and they say, ``Don't quite me 
on this but'' or ``Don't identify me but,'' I cannot really 
know what I am getting myself into, assuming that what follows 
is important and controversial enough to rise to the level of 
litigation. Will it end up in State court where I have 
protections? Or in Federal court where I may have none? If it 
is a civil trial that stems from the conversation, I would seem 
to have more protection than if it leads to a subpoena before a 
criminal grand jury. The rules of the road as I try to do my 
job as a reporter are chaotic at best. In the case of my 
imprisoned colleague, Judith Miller of the New York Times, 
several courts held that she had no right to defy a subpoena 
before a grand jury, but still another Federal court upheld her 
right and the right of the New York Times to refuse to turn 
over phone records. So the Supreme Court has not chosen to 
clarify these rules, but you can.
    I have confidence that the thorny question of ``who is a 
journalist'' can be reconciled through thoughtful debate and a 
look at decades of State experience where the press, after all, 
thrives and law enforcement is able to put criminals in jail 
every day. The proposed bipartisan statutes are a good starting 
place.
    It is also worth remembering that this privilege is about 
the public's right to know. Without whistleblowers who feel 
that they can come forward to the reporters with a degree of 
confidence, we might never have known the extent of the 
Watergate scandal or Enron's deceptions or other events that 
needed to be exposed. So it is not about us journalists as some 
priestly class, but it is about the public and our democracy.
    One might ask, Mr. Chairman, Why now? Reporters broke 
scandals without a national shield law, so why one now? I would 
offer this thought: In the 33 years since the Branzburg 
decision, the ambiguity in the law has not come at a great 
cost. There have been notable clashes between the press and 
prosecutors, and occasionally a journalist has found him- or 
herself in jail, generally just for a few hours, although 
tragically now for longer circumstances. I have some personal 
experience with this, of course, having almost gone to jail 
myself but for a last-minute waiver of one of my sources. But 
those cases generally have been so rare as to be truly 
aberrant. For the most part, there has been a civil peace 
between prosecutors who have avoided subpoenaing journalists, 
and the two camps have generally stayed out of each other's 
way. Recently, though, we have seen a run of Federal subpoenas 
of journalists, not only in my case but also in others, like 
the investigation into the anthrax killer and the case of Wen 
Ho Lee.
    I do not want to get into whether those subpoenas are good 
policy or likely to be upheld through the appellate process, 
but I do think everyone--prosecutors and journalists alike--
would benefit from knowing what the rules are.
    In the meantime, it is hard to imagine another area of 
American life where the gap between the rights one is afforded 
in Harrisburg or Montpelier or Sacramento or Austin are so 
lavish compared to what one is provided under Federal law. 
Michael Kinsley, the editorial page editor of the Los Angeles 
Times, who has been a skeptic of a Federal privilege for 
journalists, has nonetheless noted the cost of confusion. ``If 
journalists routinely promise anonymity and routinely are 
forced to break those promises, this will indeed create a 
general `chilling effect' on leaks. But the real issue is 
whether the promises should have been made. Under a clear set 
of rules, the `chilling effect' would be limited--not 
perfectly, but primarily--to leaks that ought to be chilled and 
to promises of anonymity that should not be made.''
    As someone who relies on confidential sources all the time, 
Mr. Chairman, I simply could not do my job reporting stories, 
big and small, without being able to speak to officials under 
varying degrees of anonymity. It is timely, Mr. Chairman, that 
Bob Woodward's account of his relationship with Mark Felt, the 
source known as Deep Throat, has come out this summer for it 
offers us a powerful reminder of the importance of anonymous 
sources. Prosecutors chose not to subpoena Woodward and 
Bernstein, but today I wouldn't be so sure they would show the 
same restraint. And so we need some clarity. And as a working 
journalist, I would like to know better what promises I can 
legally make and which ones I cannot. This would benefit me as 
a reporter, but, again, it would also benefit those who talk to 
reporters and the public's right to be informed.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Cooper appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Cooper.
    We turn now to Mr. Norman Pearlstine, editor-in-chief of 
Time for a decade. He has had extensive experience in the 
field: executive editor of the Wall Street Journal, executive 
editor of Forbes Magazine, a bachelor's degree from Haverford 
College, a law degree from the University of Pennsylvania, and 
that suggests, accurately I understand, some Philadelphia area 
roots.
    Thank you for coming in, Mr. Pearlstine, and we look 
forward to your testimony.

STATEMENT OF NORMAL PEARLSTINE, EDITOR-IN-CHIEF, TIME INC., NEW 
                         YORK, NEW YORK

    Mr. Pearlstine. Thank you very much, Mr. Chairman and 
members of the Committee. Since 1995, I have served as editor-
in-chief of Time Inc., the largest publisher of general 
interest magazines in the world, including Time, Fortune, and 
Sports Illustrated, and almost 140 other titles. I am honored 
to have this opportunity to testify in support of the proposed 
Federal shield law to protect journalists from being compelled 
to testify about confidential sources.
    This type of protection, which has been adopted in one form 
or another by 49 States and the District of Columbia, is 
commonly called a ``reporter's privilege,'' but this is 
something of a misnomer. The laws are really intended to 
protect the public by ensuring the free flow of information 
about governmental activities and other matters of public 
concern. I believe there is an urgent need for such protection 
at the Federal level.
    The absence of Federal legislation has created 
extraordinary chaos, limiting the public's access to important 
information that is so necessary in a democratic society. The 
Supreme Court's sharply divided decision 33 years ago in 
Branzburg v. Hayes has mystified courts, lawyers, and 
journalists alike. As a result, the Federal courts are in a 
state of utter disarray about whether a reporter's privilege 
protecting confidential sources exists. The conflicting legal 
standards throughout the Federal courts defeat the nearly 
unanimous policies of the States in this area. This uncertainty 
chills essential news gathering and reporting. It also leads to 
confusion by sources and reporters and the threat of jail and 
other harsh penalties for reporters who do not know what 
promises they can make to their sources.
    I recently witnessed the problems firsthand. As the 
Committee is no doubt aware, for almost 2 years Time Inc. and 
its reporter Matthew Cooper fought against compelling 
disclosure of confidential sources in response to grand jury 
subpoenas in Special Counsel Patrick Fitzgerald's investigation 
of the Valerie Plame affair. The Federal district judge 
presiding over the matter called this battle a ``perfect 
storm'' in which important First Amendment rights clashed with 
the important interest in law enforcement. We fought all the 
way to the Supreme Court, urging it to overturn Branzburg, and 
we lost.
    My decision to turn over confidential documents to the 
Special Counsel after we had pursued every possible legal 
remedy was the toughest decision of my career--and one I should 
never have had to make. The experience has only deepened my 
commitment to ensure protection for confidential sources and 
made clear to me how much we need Federal legislation.
    It is Time Inc.'s editorial policy that articles in our 
publications should identify sources by name whenever possible. 
But sometimes we can obtain information only by promising 
confidentiality to a source, because many persons with 
important information won't speak to the press unless they are 
assured anonymity. Information given in confidence is 
especially valuable when it contradicts or undermines public 
positions asserted by governments or powerful individuals or 
corporations. Without confidential sourcing, the public would 
never have learned the details of many situations vital to its 
interests.
    To cite a few recent examples of stories of significant 
public interest that appeared in our magazines, I recently 
worked with colleagues at Time on stories about a suicide 
bomber in Iraq and the vulnerability of our Nation's commercial 
nuclear facilities, should they be subjected to terrorist 
attack. And I worked with writers and editors at Sports 
Illustrated on stories about the use of steroids in 
professional sports. None of these stories could have been 
published without reliance on confidential sources.
    Following my decision to obey the courts by providing the 
Special Counsel with Time Inc.'s Plame file, I met last week 
with Time's Washington bureau and later that day with many of 
its New York writers and editors. Some of them showed me e-
mails and letters from valuable sources who insisted that they 
no longer trusted the magazine. The chilling effect is obvious.
    Federal law recognizes evidentiary privileges for 
communications between spouses, therapists and patients, 
attorneys and clients, and clergy and penitents. Although these 
privileges may lead to the loss of evidence, they are viewed as 
necessary to protect and foster communications deemed valuable 
to society as a whole. The same should be true for 
communications between reporters and confidential sources.
    The Plame case is part of a disturbing trend. In the last 2 
years, dozens of reporters have been subpoenaed in criminal and 
civil cases to reveal their confidential sources, many of whom 
face the prospect of imminent imprisonment. The use of such 
subpoenas in the Plame case represents a profound departure 
from the practice of Federal prosecutors when this case is 
compared to other landmark cases involving confidentiality over 
the past 30 years. Neither Archibald Cox, the Watergate special 
prosecutor, nor Judge John Sirica, for example, sought to force 
the Washington Post or its reporters to reveal the identity of 
Deep Throat, the prized confidential source.
    The 34 States and the District of Columbia said it best in 
their amicus brief, urging the Supreme Court to grant review in 
the Plame case. The States declared in their brief that a 
Federal policy that allows journalists to be imprisoned for 
engaging in the same conduct that these State privileges 
encourage and protect bucks that clear policy of virtually all 
States and undermines both the purpose of the shield laws and 
the policy determinations of the State courts and legislatures 
that adopted them.
    I strongly believe in the need for confidential sources, 
and we must protect our sources when we grant them 
confidentiality. But defying court orders, accepting 
imprisonment and fines, shouldn't be our only way of protecting 
sources or resisting coercion. Put simply, the issues at stake 
are crucial to our ability to report the news to the public. 
Without some Federal protection for confidential sources, all 
of this is in jeopardy. The time has come from enactment of a 
shield law that will bring Federal law into line with the laws 
of the States and ensure the free and open flow of information 
to the public on the issues of the day.
    Thank you very much.
    [The prepared statement of Mr. Pearlstine appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Pearlstine.
    We turn now to Mr. William Safire, for more than three 
decades a political columnist with the New York Times, a 1978 
Pulitzer Prize winner. He joined President Nixon's Presidential 
campaign in 1968, actually before the President was elected, 
and later became a senior White House speech writer. He writes 
a Sunday column of the New York Times on language, and just on 
a personal note, I have been a fan of Bill Safire's for a long 
time, and I am sort of interested to hear how he does verbally, 
whether his syntax is as perfect as it is when he reduces it 
the written form.
    [Laughter.]
    Chairman Specter. I am especially interested in the Q&A 
where we can get extemporaneous, Mr. Safire.
    Senator Biden. Mr. Chairman, 10 seconds. I have been 
looking forward to questioning Bill Safire under oath my whole 
life.
    [Laughter.]
    Chairman Specter. You other five gentlemen are excused.

  STATEMENT OF WILLIAM SAFIRE, POLITICAL COLUMNIST, NEW YORK 
               TIMES COMPANY, NEW YORK, NEW YORK

    Mr. Safire. I will watch my language.
    Mr. Chairman, I am here to urge Congress to pass a law to 
stop the Government and the courts from their present, 
dangerous course of trying to deny the public its right to the 
free flow of news.
    The press' freedom to publish the news without prior 
restraint is not in doubt. But now under attack is what comes 
before publication: the ability of journalists to gather the 
news. To do that work effectively, we must have inside sources 
willing to tell us what Government or corporate officials do 
not want the public to know. The key to opening up an inside 
source is to establish mutual trust. When we say we would go to 
jail to protect their anonymity, that is not just hyperbole. 
Over the years, trustworthy reporters have established that 
principle at great cost, just as a courageous woman is doing in 
prison today.
    That is why 49 States and the District of Columbia have 
shield laws, or case law in State courts, to stop overzealous 
prosecutors from undermining that trust by forcing reporters to 
identify sources. By protecting the reporter who is protecting 
a source, the shield achieves its ultimate goal: to protect the 
people's access to what is really going on.
    Have these State shield laws harmed law enforcement? On the 
contrary, they have led to the exposure of corruption. That is 
why the great majority of State Attorneys General recently 
joined a brief supporting the protection of the identity of 
reporters' sources. As a card-carrying right-wing libertarian 
federalist, I am proud that the States have led the way, and 
now is the moment for the Congress to profit from the 
experience of the chief law officers of so many States by 
extending the shield to Federal courts.
    Would this mean that the journalists get special treatment? 
Before compelling a person to testify, the law recognizes the 
strong social value of the confidentiality of spouses, of 
lawyers, doctors, and clergy. In 1996, that was extended to 
psychotherapists. Members of those groups are not above the law 
because the law recognizes competing values. Judges must 
balance the citizen's obligation to give evidence with 
society's obligation to protect relationships built on common 
solemn confidences.
    More than ever, journalists across the Nation are now in 
danger of being held in contempt. The reasonable protections to 
reporters' notes and confidences that have been in the 
Department of Justice guidelines to its prosecutors for three 
decades are inadequate to the stormy present. The legislation 
before you incorporates those balancing guidelines, applies 
them to the crucial issue of the identity of sources, and at 
last gives them the force of law, even to special prosecutors.
    Let me add a personal note. As the Chairman suggested, I 
have always been a language maven. Thirty years ago, I asked 
Justice Potter Stewart to help me find the origin of the phrase 
``chilling effect.'' He checked around the Supreme Court, and 
Justice Brennan reported having written a 1965 decision 
striking down a State's intrusion on civil liberty because of 
its ``chilling effect upon the exercise of First Amendment 
rights...''
    Today we have two chilling effects taking place here in 
Washington, one general, one specific.
    The general chill is on the network of useful contacts and 
the web of genuine friendships that develop over the years 
among many journalists and politicians. You run into each other 
at a ball game or at a dinner, shmooz a little on a bunch of 
topics, pick up a lead or toss out an idea, later act on it or 
pass it along to a colleague or forget it. That is how 
information flows in real life, and it is how the public gets 
the news beyond the handouts.
    But now we see a reporter in prison for not revealing part 
of a conversation she may have had about a story she did not 
write. As a result, many of us feel a general chill in the air 
and will think twice about what we say in private to each other 
as well as outsiders. In the new world of threatened contempt, 
there are no innocent questions, and a grunt or a nod can get 
you in trouble.
    And there is a more specific chilling effect taking place 
right now. It imposes a mental ``prior restraint'' on the 
gathering of news and the expression of opinion. I have always 
been able to write what I have learned and what I believe 
``without fear or favor,'' in the Times' phrase, freely taking 
on the high and mighty. But I cannot do that this morning.
    I am seething inside because I cannot tell you what I 
really think of the unchecked abuse of prosecutorial 
discretion. I cannot blaze away at the escalating threats of a 
Federal judiciary that is urgently in need of balancing 
guidance by elected representatives of the people. For the 
first time I have to pull my punches.
    The reason is I am afraid--I am afraid of retaliation 
against Federal prisoner 45570093, whose byline in the New York 
Times is Judith Miller. This Pulitzer Prize winning reporter, 
who earned the trust of the U.S. forces with whom she was 
embedded in Iraq, has accepted the painful consequences of 
daring to call public attention to the unbalanced, unwise, 
ever-growing application of the contempt power.
    I must not anger or upset those who control her 
incarceration and who repeatedly threaten to pile on with 
longer punishment as a criminal unless she betrays her 
principles as a reporter. Because any harsh criticism of them 
from me might well be taken out on her, I am constrained to 
speak gently, as if concerned about the treatment of a hostage. 
That duress, I submit, is an example of what Justice Brennan 
had in mind about a ``chilling effect.'' I can testify that it 
works all too well, which is why I will now shut up and look to 
Congress to pass a law balancing our values and taking the 
chill out of the air.
    Thank you.
    [The prepared statement of Mr. Safire appears as a 
submission for the record.]
    Chairman Specter. Thank you. Thank you very much, Mr. 
Safire.
    Our next witness is Mr. Floyd Abrams, the firm Cahill, 
Gordon & Reindel, Visiting Professor of First Amendment Law at 
the Columbia Graduate School of Journalism, one of the most 
distinguished First Amendment lawyers in America, currently 
represents the New York Times reporter Judith Miller, was co-
counsel for the Times in the Pentagon Papers case, and has 
represented so many media entities the list is virtually 
endless: ABC, NBC, CBS, CNN, Time, Business Week, The Nation, 
Reader's Digest. A graduate of Cornell University and the Yale 
Law School, one of the younger fellow from 1960.
    Thank you for rearranging your schedule, Mr. Abrams to join 
us here today.

 STATEMENT OF FLOYD ABRAMS, PARTNER, CAHILL, GORDON & REINDEL, 
                    LLP, NEW YORK, NEW YORK

    Mr. Abrams. Thank you, Chairman Specter, and thank you for 
inviting me to be here today. It is a great honor for me to 
appear here once again. I am especially pleased to do so in the 
context of proposed legislation relating to a Federal shield 
law.
    I would like to make clear at the start that I speak for 
myself today and not on behalf of any clients.
    I am sorry that Deputy Attorney General Comey was unable to 
be here today since I looked forward to hearing his responses 
to some of your questions. Notwithstanding that, I thought I 
would take the liberty of responding on my own to one thing 
that he does say in his prepared statement; that is, if you 
were to adopt the legislation before you, you would be, in his 
language, ``effectively overruling the Branzburg case.'' The 
Branzburg case could hardly be clearer that it rests with you 
to decide if you wish to have a Federal shield law. The 
language of the Court is clear. At the Federal level, the Court 
said, ``Congress has the freedom to determine whether a 
statutory newsman's privilege is necessary and desirable and to 
fashion standards and rules as narrow or broad as deemed 
necessary.''
    So this is within your purview, and it is up to you to 
decide what steps, if any, to take in this area. My own view is 
that as we meet today, the ability of journalists to gather 
news is imperiled. I have worked in this area for 37 years now, 
and that problem, the problem of gathering news, has, in my 
view, never been as seriously threatened as it is today.
    For all the ambiguity of the Branzburg case--and more than 
one lawyer has made a good living over the last 33 years 
purporting to interpret what Justice Powell's cryptic and 
enigmatic concurring opinion means--Branzburg itself has been 
interpreted in markedly different ways by lower courts 
throughout the country, and the Supreme Court has given no 
indication that it intends, short term at least, to resolve all 
the conflicts that have arisen as to whether there is any 
protection in the grand jury area, whether there is any 
protection in the criminal law area, as to whether there is 
more protection for journalists in civil cases and the like.
    As Matt Cooper testified before you today, there is simply 
no way to know. And what I would urge upon you is that it is 
simply unacceptable that Federal law should offer no 
predictable way for journalists to know what they can do and 
for them to be in a situation where they can protect their 
confidential sources in a Nation in which 49 of our 50 States 
do provide such protection, and in which virtually every 
democratic country outside the United States, countries without 
a First Amendment, provide such protection.
    The notion that we provide or may provide no protection in 
Federal courts when countries such as France and Germany and 
Austria provide full protection and countries from Japan to 
Argentina and Mozambique to New Zealand provide such protection 
using language we would understand as being First Amendment-
like in its nature is, it seems to me, unacceptable.
    In my view, when a journalist speaks to her sources and 
promises confidentiality, she should keep her word and be 
protected in keeping her word. That is not the current state of 
affairs.
    When the Branzburg case was decided, it was less than clear 
to many observers, including journalists, that any legislation 
was needed in this area. And for most of the 33 years that have 
passed, journalists won most cases and did not suffer much when 
they lost in most cases. That has changed radically in recent 
years, and I would say in recent days. In the last year and a 
half, more than 70 journalists and news organizations have been 
embroiled in battles with Federal prosecutors. Dozens have been 
asked to reveal their confidential sources. Some are or were 
virtually at the entrance to jail, and Judith Miller, not far 
from here, sits in a cell one floor removed from that of 
Zacarias Moussaoui.
    It is time to adopt a Federal shield law.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Abrams appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Abrams.
    Our next witness is Mr. Lee Levine, founding partner of 
Levine, Sullivan, Koch & Schulz; one of the Nation's leading 
First Amendment lawyers, very broad practice in 20 States and 
the District of Columbia; Adjunct Professor at the Georgetown 
University Law Center; and author of News Gathering and the 
Law; graduate of the University of Pennsylvania where he got 
his bachelor's degree, and law degree from Yale. Let me 
compliment you on two excellent choices, Mr. Levine.
    Mr. Levine. Thank you.
    Chairman Specter. And served as law clerk to Judge Irving 
Kaufman. He represents two news reporters who had produced 
stories regarding Mr. Wen Ho Lee, the former nuclear scientist.
    Thank you for coming in today, Mr. Levine, and the floor is 
yours.

 STATEMENT OF LEE LEVINE, FOUNDING PARTNER, LEVINE, SULLIVAN, 
              KOCH & SCHULZ, LLP, WASHINGTON, D.C.

    Mr. Levine. Thank you, Mr. Chairman, and members of the 
Committee. At the Committee's request I will briefly describe 
recent experience concerning the reporters privilege in the 
Federal courts.
    For almost three decades following the Supreme Court's 
decision in Branzburg v. Hayes, subpoenas issued by federal 
courts seeking the disclosure of journalists' confidential 
sources were exceedingly rare. It appears that no journalist 
was finally adjudged in contempt, much less imprisoned, for 
refusing to disclose a confidential source in a Federal 
criminal matter during the last quarter of the 20th century. 
That situation, as you have heard, has now changed. An 
unusually large number of subpoenas seeking the names of 
seeking confidential sources have been issued by Federal courts 
in a remarkably short period of time. Indeed, three Federal 
proceedings in Washington, D.C. alone have generated such 
subpoenas to roughly two dozen reporters and news 
organizations, seven of whom have been held in contempt in less 
than a year.
    In all, over the last four years, three Federal Courts of 
Appeals have affirmed contempt citations issued to reporters 
who declined to reveal confidential sources. Each Court 
imposing prison sentences on journalists more severe than any 
previously known in American history. Decisions such as these 
have emboldened private litigants as well, especially since 
they, like special prosecutors, are not bound by the Department 
of Justice guidelines.
    In one pending civil suit, for example, four reporters have 
been held in contempt for declining to reveal their 
confidential sources of information in litigation instituted 
against the Government by Dr. Wen Ho Lee. And the plaintiff in 
another civil suit, Dr. Stephen Hatfill, issued subpoenas 
earlier this year to a dozen news organizations, seeking to 
compel an even larger number of reporters to disclose the 
identities of their confidential sources.
    Congress and the public should be concerned about the 
imposition of such severe sanctions. In recent proceedings in 
the Federal courts, journalist after journalist has 
convincingly testified about the important role confidential 
sources play in enabling them to do their jobs. In my written 
testimony I recount several such examples. Consider just one. 
In 1977 Walter Pincus of the Washington Post relied on 
anonymous sources in reporting that President Carter planned to 
move forward with plans to develop a so-called ``neutron 
bomb,'' a weapon that could inflict massive casualties through 
radiation without extensive destruction of property. The public 
and congressional outcry in the wake of these news reports 
spurred the United States to abandon plans for such a weapon, 
and no administration has since attempted to revive it.
    Mr. Pincus, who never received a subpoena about the neutron 
bomb or any other matter in the course of his distinguished 
decades-long career has now received two, one from the Special 
Counsel in the Valerie Plame matter and another from Dr. Wen Ho 
Lee.
    Needless to say, the prospect of substantial prison terms 
and escalating fines for honoring promises to sources threatens 
that kind of journalism. As Los Angeles Times reporter and 
Pulitzer Prize recipient Bob Drogin, who himself has been held 
in contempt in the Wen Ho Lee case, has testified, ``I have 
thought long and hard about this, and unlike you attorneys here 
in the room, I do not have subpoena power or anything else to 
gather information. I have what credibility I have as a 
journalist. I have the word that I give to people to protect 
their confidentiality. If I violate that trust, then I believe 
I can no longer work as a journalist.''
    As you have heard, in the wake of the judicial decisions 
about which I have spoken this morning, the Cleveland Plain 
Dealer recently decided that it was obliged to withhold from 
publication two investigative reports because they were 
predicated on documents provided by confidential sources. Doug 
Clifton, the newspaper's editor has explained that the public 
would have been well served to know about these stories, but 
that publishing them would, and I quote, ``almost certainly 
lead to a leak investigation and the ultimate choice: talk or 
go to jail. Because talking isn't an option and jail is too 
high a price to pay, these two stories will go untold for 
now.''
    The situation that currently exists in the Federal courts 
has not been replicated in the States. As you have heard, the 
Attorneys General of 34 States, each of whom is responsible for 
the enforcement of the criminal law in their respective 
jurisdictions, recently urged the Supreme Court to recognize a 
Federal reporters' privilege. In so doing, the Attorneys 
General convincingly demonstrated that their shield laws have 
had no material impact on law enforcement or on the discovery 
of evidence in judicial proceedings, civil or criminal.
    Journalists have heretofore looked to the Supreme Court to 
address the confusion that now surrounds the reporters' 
privilege. The Supreme Court, however, has consistently 
declined to intervene, most recently in the Miller and Cooper 
cases.
    Nevertheless, in Branzburg itself, as Mr. Abrams noted, 
Justice White's opinion for the Court emphasized that 
recognition of a reporters' privilege more naturally falls 
within the province of the Congress. ``At the Federal level,'' 
Justice White wrote, and I quote, ``Congress has the freedom to 
determine whether a statutory newsman's privilege is necessary 
and desirable and to fashion standards and rules as narrow or 
broad is deemed necessary to deal with the evil discerned.''
    Members of the Committee, given that, I believe the time 
has now come for congressional action.
    Thank you.
    [The prepared statement of Mr. Levine appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Levine.
    Our final witness is Professor Geoffrey Stone, Harry Kalven 
Distinguished Professor of Law at the University of Chicago 
since 1994, and previously was Dean at that prestigious law 
school; served as a visiting professor at New York University 
School of Law; bachelor's degree from Wharton, and law degree 
from the University of Chicago; clerked for Judge J. Skelly 
Wright; widely recognized as one of America's leading experts 
on the First Amendment.
    Thank you for being here today, Mr. Stone, and the floor is 
yours.

      STATEMENT OF GEOFFREY R. STONE, HARRY KALVEN, JR., 
   DISTINGUISHED SERVICE PROFESSOR OF LAW, THE UNIVERSITY OF 
             CHICAGO LAW SCHOOL, CHICAGO, ILLINOIS

    Mr. Stone. Thank you for having me, Mr. Chairman.
    I strongly support the enactment of a Federal journalist-
source privilege, both to protect a free and independent press 
in this Nation, and to preserve and to protect an open public 
debate. I want to briefly address three issues.
    First you may wonder why it is we are sitting here in 2005 
trying to puzzle through this question. Why was this not 
resolved a long time ago? The reasons essentially is that there 
has been a longstanding tradition in the United States for some 
180 years, that even though there was no law prohibiting it, 
prosecutors acting as professionals did not subpoena reporters 
to obtain information because of their respect for the values 
of a free press.
    As often happens, when an event occurs that calls attention 
to an issue, such as the Branzburg decision in 1972, suddenly 
people say, ``Hmm, that is a good idea. Maybe we should start 
subpoenaing reporters now that we have learned it is 
constitutional to do so.''
    And so the fact is that the necessity for this hearing and 
the necessity for this legislation is actually a fairly recent 
phenomenon, and as in the situation that currently prevails 
with a relatively aggressive use of subpoenas of reporters is 
not the tradition in this Nation. What we face today is a 
serious anomaly in our history and one that Congress now should 
address.
    Second, the Government argues that there's no need for such 
a privilege, and essentially says that there is no compelling 
evidence that in the absence of a privilege potential sources 
decline to come forward. Frankly, this is a non sequitur. First 
of all, imagine trying to prove that people are unwilling to 
come forward because they are afraid to do so. It is an 
extremely difficult task simply as a matter of evidence. 
Moreover, the most obvious way of proving that today would be 
by comparing the experience in those States with a privilege 
with the experience in those States without a privilege. But of 
course, only Wyoming today does not have a privilege. So it 
would be impossible to undertake such an investigation. So the 
challenge from the Department of Justice to prove the need 
essentially is an empty set.
    Moreover, Congress is free to use common sense. We know 
that individuals, when they have reason to fear consequences of 
speaking, are chilled in their speech. That is why we have an 
attorney-client privilege, it is why we have a doctor-patient 
privilege, it is why we have a psychotherapist-patient 
privilege, it is why we have a marital privilege, it is why we 
have an executive privilege, it is why we have a speech and 
debate clause privilege even for members of Congress. The fact 
is, it would blink reality to imagine that there are not 
frequent situations when potential sources, having information 
that would be of significant public value, ask themselves, do I 
want to run the risk of possibly being prosecuted or possibly 
being embarrassed or losing my job or being subjected to some 
other form of retaliation? Of course individuals hesitate in 
these circumstances. This does not need to be proved in this 
context any more than it needed to be proved in the attorney-
client privilege or in any of the other privileges that we 
commonly recognize.
    Finally, the Government says, what is the cost of the 
privilege? The cost of the privilege is severe. We lose 
evidence in a prosecution that may cost the ability of the 
Government to convict a person who perhaps is guilty.
    Now, the problem with this is, first of all, it is the same 
argument that could be made for every privilege, but more 
importantly, it completely misconceives the striking of the 
balance in this situation. If we focus only on the moment at 
which the reporter invokes the privilege, we in fact then have 
a totally distorted view of the cost of benefits.
    So take a situation in which a congressional staffer 
suspects that a member of Congress has taken a bribe, and that 
congressional staffer reveals this confidentially to a 
reporter. The reporter is subpoenaed, and the court asks the 
journalist to reveal the name of the staffer so they can 
investigate further to find out the evidence. If a privilege is 
recognized, the journalist will not reveal the name of the 
staffer and it will be more difficult to investigate, and it is 
that variation that the Government would ask you to focus on. 
But that is the wrong moment.
    What you have to do is go back and ask what happens at the 
moment that the source, the congressional staffer, thinks about 
speaking to the reporter in the first place? If the staffer 
would not be willing to speak in the absence of a privilege, as 
well might be the case, then the reporter will never have the 
story, will never publish the story. No one will ever know that 
there is even a possibility that that Member of Congress took a 
bribe. There will be no investigation, and it is hard to see 
how law enforcement or the Nation is better off in a world in 
which no such information is revealed at all, than one in which 
it is revealed and made available to the public, and at least 
opens the opportunity for an investigation that otherwise would 
not exist. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Stone appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Stone.
    Turning to the two cases, the one against Ms. Judith Miller 
and the one against Mr. Matthew Cooper, what were the essential 
differences? I want to direct this question to you, Mr. Abrams, 
and also to you, Mr. Pearlstine. What were the essential 
differences in your views of the law which led to the position 
to be taken as to Ms. Miller, who is in jail, contrasted with 
the position taken by Time, Inc., which led to Mr. Cooper's not 
being in jail.
    Mr. Abrams, would you start, please?
    Mr. Abrams. I do not think that there was any substantive 
difference as to what the law was. The difference I think is 
that Mr. Cooper obtained what he understood and understands to 
be a clear, unambiguous, uncoerced, waiver from his source, 
which permitted him to testify, and Ms. Miller is not in that 
situation, and therefore, has not testified.
    As regards the law itself, I will pass to my colleagues on 
the right, but I do not really think there was any substantive 
disagreement.
    Chairman Specter. You are saying it is just a factual 
matter as to the waiver which Mr. Cooper got, right?
    Mr. Abrams. Yes.
    Chairman Specter. Did you disagree with what Mr. Pearlstine 
said or at least was reported to have said about his view that 
Time, Inc. had an obligation to obey the law?
    Mr. Abrams. My own personal view--and I repeat, my personal 
view; I can lose a lot of clients very quickly today, Senator.
    [Laughter.]
    Chairman Specter. That happens to us all the time.
    [Laughter.]
    Mr. Abrams. My personal view is that I would have wished 
Time would have acted as the New York Times did in 1978 when 
there was an order requiring a New York Times reporter to 
reveal his confidential sources, and an order requiring the New 
York Times to take steps to compel him to do that. The Times 
and the reporter both said that they would not do that, they 
would pay whatever the penalty that was imposed upon them. And 
they did so, and it was very substantial.
    Now, I understand that there are serious--
    Chairman Specter. It was money.
    Mr. Abrams. It was money.
    Chairman Specter. Different from going to jail.
    Mr. Abrams. Yes, it is different from going to jail, 
although sometimes it is easier to go to jail in some 
circumstances if the money gets to be at a point where 
shareholders may have something to say about it.
    Chairman Specter. I will not pursue that line because I 
only have 5 minutes.
    But, Mr. Pearlstine, same question, what was the difference 
in your view, if any, between the New York Times and Ms. Miller 
and Time, Inc. and Mr. Cooper?
    Mr. Pearlstine. First of all, I share Mr. Abrams' view as 
with regard to what the law is and what the implications of the 
Supreme Court's refusal to hear our appeal are.
    I should point out that Time, Inc. was a defendant in this 
case, whereas the New York Times was not. I do respect the 
individual act of conscience on the part of Judith Miller to 
decide to go to jail, and I respected Matt Cooper's willingness 
to refuse to testify as an individual if that were his 
decision.
    My own feeling is that in this rather exceptional 
circumstance where we had a Supreme Court refusing to hear our 
appeal, where we had issues of national security, and where we 
had a grand jury in place, there were specific circumstances 
that suggested to me that it was appropriate for us an 
institution in possession of a file to turn it over to the 
Special Counsel.
    Chairman Specter. Had Mr. Cooper not gotten that waiver, 
what would your decision have been?
    Mr. Pearlstine. I made the decision prior to Mr. Cooper 
getting a waiver to turn over our file to the Special Counsel, 
because I thought on journalistic grounds that we had spent two 
years pursuing this case, seeking every possible judicial 
remedy, but that with the Supreme Court's failure to act, and 
with the absence of a Federal shield law, I thought this was 
one of these cases and one of these unusual ones where the 
combination of national security being an issue and a grand 
jury being enforced where it was the right thing to do.
    Chairman Specter. Professor Stone, I have 8 seconds, just 
time enough to ask a question before my red light goes on, 
which I will reserve. I read--and it is hard to follow--you 
were critical of the New York Times position. Is that true, and 
if so, why?
    Mr. Stone. I believe that reporters, like the rest of us, 
should follow the law when the law is clear and when they have 
exhausted their legal remedies as was true in this case. There 
are circumstances where I believe civil disobedience is 
appropriate, but I think they should be reserved to those 
situations in which there is a reasonable case to be made that 
the legal system itself or the system of Government is 
oppressive or unjust, or immoral. In this situation, I think 
there is a profound disagreement about public policy, but I 
believe that if that is all there is, and it is what I believe 
there is, then I think it is their responsibility to comply 
with the law. So I agree with Mr. Pearlstine's decision. I 
think that was the correct thing to do, and then to seek to 
change the law so as to create a privilege so that situations 
like this do not arise in the future.
    Mr. Safire. Mr. Chairman, can I jump in on this waiver 
business?
    Chairman Specter. Yes, of course. Mr. Safire.
    Mr. Safire. I do not have to pussy foot about this because 
it is a matter of principle. I think waivers of confidentiality 
are a sham, a snare and a delusion. When you put somebody's 
head to a gun or a gun to a head and say, ``Would you sign this 
waiver of confidentiality so we can force the reporter to talk 
about what you said,'' you are coercing him in the most 
forceful way. You are saying, ``You will lose your job or you 
will become a target of grand jury investigation unless you 
sign this waiver.''
    I think from the reporters' point of view, from the 
journalists' point of view, when presented with a waiver, even 
with my name on it, saying, ``Okay, Safire, you can tell them 
what I said,'' my reaction should be, ``You tell them what you 
said. Get up and say, I met with this man and I told him 
this.'' I then can say, ``Yes, that is true,'' or ``No, he has 
that one wrong.'' But the notion of putting the onus on the 
reporter, that he must reveal what happened because a source 
has been coerced, forced into asking him to talk, I think is a 
perversion of justice.
    Chairman Specter. Thank you, Mr. Safire.
    Senator Leahy.
    Senator Leahy. Thank you. I am sorry I had to step out 
briefly because of the Supreme Court matter, but I did read the 
testimony of all of you. Mr. Safire, I had my ``gotcha'' staff 
go through to see if we could find a grammatical error in 
yours.
    [Laughter.]
    Senator Leahy. We did not. I did find interesting your 
discussion with Potter Stewart about the chilling effect, and I 
am disappointed that Mr. Comey did not show up because I really 
did want to ask questions about why the administration is so 
opposed to the shield law. You pointed out, I guess around 
three or so States have it by statute, another 19 or so by case 
law. But you, Mr. Safire, have written about the fundamental 
right of Americans who have free press to penetrate and 
criticize the workings of our Government. I agree. One of the 
reasons I pushed the FOIA as far as I have, I think it does 
make Government more transparent and it helps hold it 
accountable. But the question is, does this fundamental right 
bestow upon the press a right to refuse to testify before a 
grand jury in a criminal investigation?
    Mr. Safire. I believe it does.
    Senator Leahy. Is there ever a circumstance under which a 
reporter should divulge his or her confidential sources to 
either a grand jury or even in a civil case?
    Mr. Safire. Yes. We are not asking for an absolute 
privilege. Indeed, in this legislation before you, there is an 
exception on national security, that if there is an imminent 
and actual danger that the reporter can indeed be required to 
testify.
    Senator Leahy. We have seen since 9/11 the enormous 
flexibility shown in what is considered imminent danger. We see 
it in the FISA courts. We see it in others. Does this give a 
great deal of power to the Government to say what is imminent 
danger?
    Mr. Safire. The Government does not define the word. I am 
in the semantics business. I know what imminent means. Imminent 
means about to occur. It does not mean potential. There is an 
element of urgency to it. Now, it is used and misused by a lot 
of people, but I think every lexicographer will agree that 
imminent means about to occur and that if a national security 
crisis is about to occur, then let us face it, as citizens 
reporters have to help.
    But here is the thing. Journalism and reporters are not the 
fingers at the end of the long arm of the law. We are not 
agents of the Government. Consider the weapons that the 
Government has to get evidence. It can put people under oath 
and threaten to jail them if they do not tell the truth. It can 
subpoena e-mails. It can wiretap. It can offer immunity that 
overcomes the Fifth Amendment. These are huge, powerful methods 
of gaining evidence.
    What do we have? We have the power of trust. We have the 
ability to say to a source, ``You can trust us. We will not 
reveal who you are. You will not be involved. What is the 
truth?'' Now, that is our power, that is our weapon, and it is 
being seized and taken away from us.
    Senator Leahy. Let me pursue this a little bit further, 
some of the things I would have with Mr. Comey. Let me take you 
and Mr. Levine perhaps to answer this. And I am sympathetic, 
somewhat sympathetic to the Branzburg decision to accept the 
argument that public interest and possible future news about 
crime from undisclosed, unverified sources must take precedence 
over the public interest in pursuing and prosecuting those 
crimes.
    But when a crime is committed, why would that not trump 
confidentiality? I mean even defense attorneys are subject to a 
crime fraud exception. Should journalists have this absolute 
privilege when no one else does?
    Mr. Safire. We are not asking for an absolute privilege, 
Senator, quite the contrary.
    Senator Leahy. But when a crime has already been 
committed--I am not talking about the future--crimes have 
already been committed.
    Mr. Safire. You go into court and a defendant is threatened 
with the loss of his freedom, and you have a conflict between 
the First Amendment and the Sixth Amendment. What do judges do? 
They strike a balance. They say, ``How important is this 
testimony, and can we get it from someplace else?'' They 
recognize the importance of the First Amendment and the 
protection of the right of the free press to help the flow of 
news. At the same time you are not going to put somebody in 
jail because there is no other way of getting the information 
except from the reporter. So this is something that judges do 
every day. As you know, prosecutors have to use their 
discretion on whether or not the case is so important and this 
is the only way they can get the information, and when the 
accused is faced with serious punishment, most of the time--and 
I guess my legal counsels here can say this better--most of the 
time judges come down on the side of the Sixth Amendment, and 
that does not bother us.
    The fact is that we are sensible people. We do not push 
this thing to absolutes.
    Mr. Abrams. Could I add to that, Senator, that in all the 
States that we have outlined for you in our testimony that have 
shield laws, they have addressed the very issue that you have 
asked Mr. Safire about. I mean in the District of Columbia, in 
New York and Indiana, and 16 States around the country, there 
are what could be called absolute shield laws. There are, in 
any event, shield laws which say, in response to your 
hypothetical, that, yes, in a criminal case a journalist cannot 
be required to reveal his or her source.
    Some States do it on a balancing basis. A number of States, 
with no difficulty and with no harm so far as we can tell to 
the rights of defendants or prosecutors, have gone farther and 
said it is so important to protect the confidentiality, that 
will have what is a nearly absolute rule in the same way we 
have for lawyers. I mean there is no balance struck about what 
Judith Miller told me about the right of a court to ask me to 
answer the question, ``Who is your source?'' I know who her 
sources are. No one would think of asking me because I am a 
lawyer and because we all live in a system in which we 
understand and accept the idea that you cannot have a 
functioning legal system unless lawyers and clients are free to 
talk to each other, and it is our position that something like 
that is applicable or should be held to be applicable in this 
area of journalists as well.
    Mr. Safire. And the key word is ``balance.'' We balance the 
right of a free press against the right to a fair trial. 
Another field, we balance civil liberties against the need to 
crack down on terrorism. This balancing business is what the 
Constitution is all about.
    Senator Leahy. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Leahy.
    As is the custom of the Committee, we will now proceed on 
what we call the ``early bird rule,'' and that makes Senator 
Cornyn next, even if other Senators were present. And on the 
Democratic side, we have Senator Feinstein, Senator Durbin, 
Senator Biden, Senator Feingold and Senator Kennedy, in order 
of arrival.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman.
    In Thomas Friedman's book, The World is Flat, he writes 
about this fascinating story of Bob Schieffer being encountered 
outside of a Sunday morning talk show by a young reporter, but 
not one that we would perhaps identify in traditional terms. 
This young man took out his cell phone and asked Mr. Schieffer 
to stand there while he took his picture, and then went back 
and wrote on a website that he had created for himself, and the 
story of the day--I cannot recall the context of the story, but 
the fact is that there are new and different types of people 
reporting information and making it available literally to 
anyone in the world.
    I would just like to ask each of our distinguished 
panelists--we have of course two great institutions, 
journalistic institutions the New York Times and Time Magazine 
represented, and other distinguished witnesses. Would you 
extent this privilege to a blogger or to the type of person 
that Mr. Friedman writes about that is basically an individual 
who has taken the initiative to create a story and publish it 
to the world? Mr. Safire, let me start with you if I might.
    Mr. Safire. There are maybe 9 or 10 million bloggers out 
there, and growing all the time. I do not think journalism 
should profess to be a profession. I think the lonely 
pamphleteer has the same rights as the New York Times. When you 
start saying who is a journalist, I think you as well as we can 
agree on certain principles to draw a line somewhere. I think 
one important principle is regularity. Are you in this business 
once a year or once a week or daily? Another thing is, are you 
in the business of gathering news?
    It is a tough line to draw, but that comes I think from 
practice and case law. I would like to see the ``who is a 
journalist'' issue developed by good faith legislating and 
deciding it in courts. It has been done before.
    Floyd, has it ever been done before?
    Mr. Abrams. Well, it has been done by all the States that 
have shield laws of course, because they all have definitions, 
so all 31 of those States have provided a definition. Some of 
them are very specific. You have to work for a newspaper, 
magazine, broadcaster a certain amount of time. Some of them 
are a little more open-ended and address your question a little 
more directly by adopting a sort of functional test, do people 
do the sort of things that we would call journalists as doing? 
It is difficult but it is not an impossible task. I mean it 
reminds me of the task the courts have had in religion cases in 
which the question is, who is a minister? Who is a priest? And 
the courts, quite rightly, have shied away from trying to 
define what is a religion for fear of seeming to license 
religions, but they have come up with sort of common sense 
definitions of people who do the sort of things that 
historically priests and ministers and rabbis and others have 
done.
    Senator Cornyn. Professor Stone?
    Mr. Stone. I think that it is important to recognize that 
the purpose of the privilege is to encourage sources to be 
willing to make confidential disclosures. And therefore, the 
definition of the journalist really need not be focused on a 
sort of credentialism as much as what is the reasonable belief 
of the source in any given situation? If a source reasonably 
believed that the person to whom he is making a confidential 
disclosure is an individual who disseminates information to the 
public, and the source's purpose is to enable that individual 
to disseminate information, then that is probably the 
functional test that one needs in a situation like this. Even 
in the attorney-client privilege, it focuses not on who is an 
attorney, but whether the person who thinks he is a client 
reasonably believes the person to whom he is speaking is an 
attorney.
    Senator Cornyn. Unfortunately, my time is just about to run 
out, but let me just say, to me this is something we need to 
explore a little further because it strikes me that anonymity 
also has the risk of creating non-accountability, indeed, 
irresponsibility when it comes to accurately reporting 
information, and certainly getting accurate information seems 
like a value that ought to be taken into account here, because 
inaccurate information can cause a great deal of harm, and 
journalists, professional journalists are bound by a code of 
conduct and a code of ethics, but certainly the technology has 
made it possible for many people to publish information in 
anonymity that could cause a great deal of harm as well. So it 
seems like a consideration we certainly need to take into 
account.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Cornyn.
    Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman. I would 
just like to say that I very much regret the Department of 
Justice is not testifying here today. I have read the written 
remarks of Deputy Attorney General Comey, and it is a rather 
serious indictment of the legislation in front of us on many 
points. I think it has to be taken seriously, and I think we 
have to explore the points.
    So, Mr. Chairman, my request would be that we have another 
hearing and that we do have the Justice Department testify. 
They have made some very strong allegations in this written 
testimony.
    Chairman Specter. Senator Feinstein, I am disappointed that 
Mr. Comey is not here as well. I learned about it just this 
morning, and we will consider another hearing, This is a 
complicated matter, and a lot of ramifications, and we have a 
jammed agenda, but we will certainly consider another hearing 
to have him come in.
    Senator Feinstein. Good. Thank you very much.
    Now a question, if I might, of the panel, and thank you 
very much for your testimony. In my home State, California, we 
have a constitutional provision as well as a statute that 
protects reporters. However, it is very carefully drafted, and 
it balances the needs of reporters along with the needs of law 
enforcement, defendants and others in a given case.
    California has a qualified immunity against contempt 
sanctions, rather than an absolute privilege. In addition, 
through case law, California has developed balancing tests 
depending upon the specifics of the case, including whether the 
information is being requested for a criminal or a civil case.
    The legislation before us is extraordinarily broad. My 
initial reading of it is rather startled by it. I think the 
national security provisions are particularly broad. I speak as 
a member of the intelligence community, where we are so 
cautioned against even indicating something that has been in a 
newspaper if we have heard it in the Committee. And it seems to 
me that under the ABC of the national security provisions in 
this, they are virtually impossible. They would not even make 
the outing of Valerie Plame effective as far as this is 
concerned.
    My question to the panel is whether you are rock solid in 
saying that this legislation is the only legislation, or 
whether the panel is willing to look at what other States have 
done that have a background of case law, and that have affected 
I think a more balanced piece of legislation.
    Could we start with you, Professor Stone?
    Mr. Stone. Sure. First of all, I had no hand of course in 
drafting the bill, so I have no responsibility for that, but I 
think the key problem with balancing, open-ended balancing, is 
again we have to keep the focus on the fact that the purpose of 
a privilege is to encourage a source who is reluctant to come 
forward with information, to do so. The more uncertainty that 
exists in whether or not a privilege will in fact be honored, 
the greater the reluctance on the part of the source to come 
forward with the information, and in some sense the balancing 
can be self-defeating because if it becomes so uncertain to the 
source whether a prosecutor will be able to make a certain 
showing four months down the road or whether certain 
circumstances will come to pass, that they just have no idea 
whether they are going to be protected or not, then many 
sources, perhaps most sources, will simply say the better part 
of wisdom is to remain silent.
    So I think the danger of--
    Senator Feinstein. Could you talk national security, 
please, because that is my big concern.
    Mr. Stone. Okay. If the issue is only national security, 
then I think the problem is much less, because national 
security leaks are of course only a very tiny percentage of all 
of the circumstances in which we are dealing with a potential 
journalist-source privilege.
    In the national security context, if at least it is clear 
to the source that they are dealing with information relevant 
to the national security, then I think the risk of chilling 
effect, which I was talking about a moment ago, is less severe. 
What really matters is that the rules need to be clear. If the 
Congress believes, for example, that the leak of any classified 
information period is both criminal and may not be subject to a 
privilege, then we should say so, and then at least sources and 
reporters will know what the rules are, so clarity is the key.
    Senator Feinstein. Let me just debate you about this for a 
minute.
    Mr. Stone. Sure.
    Senator Feinstein. Do you really have to reveal Mrs. 
Wilson's name to have the law apply? I mean I am interested in 
the timeline of the calls that went back and forth, and then, 
bingo, the Novak article identifying her, violating a law 
clearly.
    Mr. Stone. I would say that under my understanding of the 
relevant law in that situation, there is no necessity to 
actually identify the name to violate that statute. It is 
sufficient to provide enough information so that the 
individual, the reporter with whom I am speaking or the other 
individual with whom I am speaking could discern the name. So, 
no, I do not think there is any defense to the statute that one 
did not use the name, Mrs. Wilson.
    Senator Feinstein. Anybody else want to comment?
    Mr. Levine. Let me just say a word, Senator Feinstein, 
about the California statute, because I think it is an 
illustrative example. In fact, the California statute on its 
face is in many ways--and of course it does not deal with 
national security for obvious reasons, but in many ways it is 
broader or at least as broad as this statute. Where the 
California has been narrowed in application, as you pointed 
out, has been by case law, and that would happen with this 
Federal shield law as well. California has recognized, for 
instance, that the Sixth Amendment right of a defendant to a 
fair trial is a constitutional right, that in appropriate cases 
needs to be balanced against the statutory rights granted by 
the shield law. And I think we all fully expect that this 
statute will be subject to judicial interpretation in the same 
way.
    On your other question, I too did not have any role in 
drafting this statute, but I think I have gotten very clear 
signals from everyone who has been involved, and all of us 
here, are interested in working with the Committee, and that 
this is not written in stone.
    Senator Feinstein. Appreciate that. I would just ask if you 
have some better language with respect to Section 2A, B, C, as 
it relates to national security, because it seems to me that 
this is so broad that I mean to prevent--Mr. Safire, I think 
well-explained what imminent is--but this would mean basically 
there is no ability to compel anything. I could not conceive of 
a case where under this statute information could be received.
    Does anyone else have a comment?
    Mr. Abrams. I would just add, Senator, that I too had 
nothing to do with the language, but I thought on first reading 
at least, that the necessary to prevent imminent and actual 
harm, national security, was a good try, but this is not 
written in stone, and I am confident that the drafts people or 
others involved in this would be glad to sit with you and your 
colleagues and try to deal with any broader problems that you 
perceive.
    Senator Feinstein. I appreciate that.
    Chairman Specter. Senator Feinstein, you are 3 minutes 
over. How much more time would you like on this round?
    Senator Feinstein. No, no, no, please. That is fine. Thank 
you very much.
    Chairman Specter. Senator Durbin.
    Senator Durbin. Thank you very much, Mr. Chairman.
    It is clear that freedom of the press has been enshrined in 
our Constitution for good reason. It is an opportunity to put a 
check on Government, to expose corruption, deception, abuse of 
power clearly in the public interest of the United States. 
Because of Mr. Novak's publication, we are now being drawn into 
a more specific debate about how far this confidentiality 
should extend.
    Under common law and State laws we have privilege that is 
extended in the attorney-client situation, but it is privilege 
that is circumscribed. In most States, I think perhaps in all 
States, I could not, as the attorney of a person, conceal a 
crime if that is the information disclosed to me by a client. 
And so I could not assert the privilege if it would in any way 
protect that person from criminal penalty for what they have 
done.
    The law that we are considering today in its most recent 
revision, Mr. Safire is right is not absolute. But the law 
certainly is more specific and narrower than what I have just 
described. The only crimes that would clearly be covered by 
this relate to national security. Those are the only 
exceptions. And so it raises at least two issues, three issues 
in my mind, and one I will close with a hypothetical and leave 
it open to the panel.
    First, what if the disclosure of the information is in and 
of itself a crime, as in the case of Valerie Plame? The 
disclosure of her identity was a crime. Then I would think you 
would still have to go through this bill to prove that 
disclosing the source of her name is in some way necessary to 
prevent imminent actual harm to national security and more.
    Secondly, if the whole motive of confidentiality for the 
press is the public interest, what are we to do with situations 
like Valerie Plame, where clearly the motive in disclosing her 
name had little to do with public interest; it was a selfish, 
mendacious effort by those in the White House to discredit her 
husband and the article that he had written for the New York 
Times? Little public interest was being served here, and to 
argue that now we have to rise to the occasion of protecting 
that kind of disclosure, which is not in the public interest, I 
think raises a second major issue.
    And the third issue is this: Assume I am a reporter who 
receives a telephone call from someone who identifies himself 
as the kidnaper of a child. That child is still alive. And I, 
as kidnaper, tell the story to the press about what I have done 
with that child and where that child is. As I understand it, 
from this law and the way it is written, I could not be 
compelled, if I asserted my right as a reporter to 
confidentiality, to even disclose the identity of a kidnaper or 
sexual predator because it does not fall into the exception 
related to national security. It has nothing to do with 
terrorism. This is a sexual predator who has kidnaped a child. 
Now a great story has been written.
    As I understand it, that reporter could not be compelled to 
disclose the identity of that kidnaper under this law. I would 
like to leave it open to the panel to respond.
    Mr. Levine. Perhaps I could take the kidnapping example, 
Senator. First a couple of points. As you have heard here 
today, many States have written shield laws and 49 have some 
form of privilege. You would think that episodes involving 
kidnaping or other threats like that would arise at the State 
level more frequently than they would at the Federal level.
    As far as we can tell in going back and researching it, we 
are aware of no situation in American history where a news 
organization has been in possession of that kind of 
information, and has asserted any kind of privilege.
    Senator Durbin. Assuming it is a Federal crime of kidnaping 
and the circumstances I have just described, could the reporter 
be compelled to disclose the source under the Dodd-Lugar bill?
    Mr. Levine. Under this statute, no, and I think you raise a 
fair point, that I do not think anybody on the--any reporter or 
any journalistic organization would have any problem with 
addressing that situation in the statute. What I am suggesting 
to you though is our experience demonstrates that journalists 
and news organizations live and work in communities. They are 
citizens, and there is no evidence ever in American history 
that I am aware of that any news organization in that kind of 
situation has not voluntarily come forward without the need of 
a subpoena or asserting any kind of privilege when that kind of 
situation has occurred.
    Senator Durbin. Would you address the second part of the 
question? If we are not dealing with a disclosure to reporter 
in the public interest, but rather, the disclosure of secret 
grand jury testimony, clearly designed to put the witness and 
the grand jury or the target of the investigation in a terrible 
position, bargaining for their freedom. Is that in and of 
itself--should that be treated the same way as whistleblower 
disclosures in the public interest?
    Mr. Levine. I think you have to be very careful about 
drawing a line based on the level of public interest or the 
public good that will be served by a disclosure for a number of 
reasons. First, from the journalist perspective--and the 
journalists on the panel can speak to this better than I can--
it is impossible to know in advance. It is impossible to know 
when you make the promise before you receive the information 
whether what you are going to be getting is the Pentagon papers 
or whether it is going to be something else. So you put, as 
Professor Stone was saying, you put both the person who is 
seeking the promise of confidentiality, and more importantly, 
the reporter, in an impossible situation if you impose that 
kind of test, and in the end of the day provide really no 
protection at all.
    The second thing is that the concept is incredibly elastic. 
One person's whistleblower is another person's slander 
mongerer. I mean it depends on where you sit, and as one of the 
panelists said before, I would hope that in considering this 
legislation--and I am confident that you will--that you will 
look beyond the political exigencies of the day to the broader 
picture of the general public good that is served by allowing 
reporters to honor these promises.
    Senator Durbin. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Durbin.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Recent events have obviously made this proposed Federal 
shield law a hot topic. The sight of reporters in handcuffs is 
not a pleasant thing for any of us to see, and as our witnesses 
have noted, these scenes are becoming more and more common. 33 
years after the Branzburg decision it is time for Congress to 
act. I have co-sponsored the bill introduced by Senator Dodd, 
Senate Bill 369, and I will also shortly co-sponsor Senator 
Lugar's new bill.
    The important thing is to end the uncertainty and the 
incongruities caused by having protection for anonymous sources 
in 49 States and the District of Columbia, but not in Federal 
cases.
    I do not take lightly the issues raised by the Deputy 
Attorney General in his written testimony. We must certainly 
consider the effect that a shield law might have on 
investigations and prosecutions of terrorism and other serious 
crimes, but anonymous sources have been too important to 
exposing Government and corporate wrongdoing to let the current 
situation continue. It is not, in my view, a credible argument 
to say that because high profile anonymous sources have 
continued to work with reporters even without a shield law in 
the decades since Branzburg, that that will continue 
indefinitely.
    The chilling effect that our witnesses have mentioned is a 
gradual lowering of the temperature, not an instant ice age. 
The more high profile contempt prosecutions of journalists we 
have, the greater the chances that potential sources will be 
deterred from coming forward.
    Another argument made be the Deputy Attorney General with 
which I disagree is that congressional action or legislation in 
this area would overrule Branzburg. I think that is incorrect. 
Branzburg stands for the proposition that the protection of the 
identity of anonymous sources is not required under the First 
Amendment. But many judges ruling in these cases have invited 
Congress to legislate. This is an area where Congress has the 
power and the responsibility to set out the parameters under 
which testimony of this kind can be compelled. A free society 
cannot long survive without a robust free press.
    And so I am very grateful to the witnesses for the 
tremendous expertise that they bring to this subject, and I 
look forward to working with all of you to help design a 
workable and effective Federal shield law.
    The press will certainly benefit from the law, but more 
importantly, the Nation will benefit.
    In my remaining time I would like to ask the panel, the 
Deputy Attorney General wrote in his testimony that the 
evidentiary showing required by S. 340 to compel a person 
covered by the Act to testify or produce a document would 
jeopardize traditional notions of grand jury secrecy. And I 
realize that this may not be your core area of expertise, but 
can any of you talk about that concern?
    Mr. Abrams. May I say, Senator, that having been in the 
position representing Judith Miller and having represented Matt 
Cooper in earlier stages in his case, that the proceeding went 
along just fine without showing us anything. We never got to 
see anything that had been submitted to the grand jury, even 
though the Special Counsel made submissions of it to the court. 
And while that was not to our liking and we urge that it was a 
due process violation, the Court of Appeals for the District of 
Columbia held that it was indeed constitutional.
    So if there are grand jury materials which need be shown to 
a court in order to make a ruling, at least at this point, it 
appears to be constitutional to do that even without showing it 
to opposing counsel.
    Senator Feingold. Now, I would have thought that a better 
way to do that is to do it under a protective order in which 
opposing counsel, at least counsel would have the right to see 
the materials, and to proceed on that basis in secret, in 
camera, but one way or the other, it would not destroy the 
principle of grand jury secrecy.
    Mr. Abrams. May I chime in?
    Senator Feingold. Mr. Safire.
    Mr. Abrams. Not only is the testimony that you referred to 
from the Department of Justice not supported by an individual 
here on the panel, but the testimony itself is about 3 days out 
of whack. You will notice how it stresses national security, 
and evidently, to read the amended act, or the act as it now is 
presented to us, it has been changed, it has been brought up to 
date. The argument about national security has been 
incorporated into it, and that powerful line about imminent and 
actual danger is in. So here you have the Department of Justice 
with a brief that does not take into consideration the changes 
that Senator Lugar and others have made in it.
    Senator Feingold. Anybody else want to comment?
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Feingold.
    Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman. This has been 
enormously informative and helpful, and as one that is a strong 
believer in the First Amendment, and recognizes that it is the 
amendment that gives life to our democracy and protects the 
freedom of all Americans including the right to criticize. I 
remember being in law school and listening to bill Douglas, 
Justice Douglas answer a question from a student, and said, 
``What is America's greatest export? '' And he mentioned the 
First Amendment.
    I think we listened to the discussions and the exchanges of 
my colleagues about the exception, and I think Mr. Safire 
mentioned the imminent national danger, the exception.
    I would like to ask Mr. Pearlstine, if this legislation had 
been in law, would you have acted the same way as you did?
    Mr. Pearlstine. In turning over?
    Senator Kennedy. Yes.
    Mr. Pearlstine. I think that if this law, as I now read it, 
were enforced, we would not have been required to turn over the 
file. But I say that not knowing exactly what the special 
counsel alleged in terms of national security because in the 
court of appeals decision we have eight blank pages where the 
Justices, if you will, had a chance to consider what the 
Special Counsel thought the security issues were, and we have 
never seen those.
    Senator Kennedy. Well, doesn't this raise the question 
whether these words were defined sufficiently to do what all of 
you have asked to do? Mr. Levine?
    Mr. Levine. I think on the question that you put to Mr. 
Pearlstine, I think we can say two things about the statute 
with confidence that would have been different than actually 
happened in the case involving Mr. Cooper and Ms. Miller. One 
is they would know that they had a presumptive privilege, which 
the courts in their case said they did not. Second, we would 
know what the test is, and it is the test that you have spoken 
about, Senator. What we do not know is how that test would have 
been applied in the circumstances of either the case of Ms. 
Miller or Mr. Cooper because we do not know what the evidence 
was.
    So I think that the role of the court would be clearer; the 
test that would be required to apply would be clearer; but none 
of us can predict except perhaps for Mr. Fitzgerald, who is not 
here and is not talking, what the outcome of that exercise 
would be.
    Senator Kennedy. Just finally, those words ``imminent 
national danger,'' is there anything else that you want to 
suggest to the Committee that is better, stronger, more 
effective? Or should we live with those words as far as the 
panel is concerned?
    Mr. Stone. I think it would be possible to expand, as was 
suggested earlier by Senator Feinstein, from national security 
to other grave crimes that could be committed, such as the 
kidnapping example. And I also think that, as Senator Durbin 
suggested, some attention might well be placed on the issue of 
whether the disclosure itself is unlawful. Since the purpose of 
the privilege is to encourage sources to disclose information, 
if the disclosure is itself unlawful, then the law has already 
determined that we do not wish to encourage those disclosures. 
And I think that would be a relevant issue to consider in the 
statute for a case like the one involving the disclosure of 
Valerie Plame's identity. If that disclosure is unlawful to the 
reporter, then it seems to me that should be a relevant fact in 
deciding whether a privilege should apply.
    Mr. Abrams. May I say, Senator Kennedy, I think that it is 
troubling to import the notion of the disclosure of the 
information to the journalist herself or himself. The 
disclosure of the Pentagon Papers may well have been illegal by 
the Times' source, but to have a statute which, therefore, 
strips the Times or in those days stripped the Times of the 
right not to reveal who the source was would effectively have 
meant they couldn't have accepted the information, or else if 
they had and the Government had pursued this, would have been 
in the same sort of fix that we have seen in recent days.
    So I would be loath to sign on to the notion that simply 
because the disclosure is illegal--if it is a crime, prosecute 
that crime. But I would not make that an element in deciding 
whether journalists have a privilege or not.
    Mr. Levine. I Would also be very careful about expanding it 
beyond the areas of national security and perhaps matters of 
life and death and public safety, like Senator Durbin was 
talking about. We have a whole raft of statutes on the books--I 
will mention just one, the Federal Privacy Act--that purport to 
forbid Government officials from disclosing information about 
identifiable persons. That statute on its face is incredibly 
broad. If you enforce that, as has been suggested by some of 
the civil litigants who are bringing Privacy Act claims, it 
would render illegal the communications that go on every day 
between reporters and sources in Washington, D.C., and 
elsewhere. And making that the linchpin on whether there is a 
privilege or not would effectively gut it, I think.
    Senator Kennedy. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Kennedy.
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman.
    Before I question the witnesses, I would just like to 
second Senator Feinstein's request that Mr. Comey come before 
us at some future time. I think we really need to have him here 
to answer questions. I had a bunch of questions for him. So if 
you could make that request in strong terms, that would be 
great.
    Chairman Specter. Senator Schumer, I noted when Senator 
Feinstein made her point, I saw your body language. I have 
already marked you down as a seconder.
    [Laughter.]
    Senator Schumer. Thank you.
    Mr. Levine. Make me a third-er.
    Senator Schumer. Vermont body language is a little less 
easy to perceive than Brooklyn body language.
    In any case, let me just speak for a minute and then ask 
questions. My sympathies in general are with protecting sources 
and having disclosure. I think our society depends on it and 
needs it, more now than ever before. So I am sympathetic to the 
journalistic side of this.
    But you do run into a few roadblocks, and I would like to 
explore those, and it is why I have not cosponsored the bill. I 
still might vote for it, but I am not yet ready to cosponsor.
    Ninety-nine percent of all leaks, I think, are unassailable 
because they do some good. They are not violations per se of 
the law, which I think Professor Stone mentioned. When somebody 
in the FDA is upset that they have done a rotten job on a test 
and tells a reporter, that is good thing for society. And we 
need to do that, and we need to encourage it. And I think, my 
guess is, there would be broad support certainly on this side 
of the aisle, and I even think on the other, for laws that 
protected that. That is probably 99 percent of all undisclosed 
sources or leaks.
    One percent do involve violations of law. I am not sure I 
agree with Mr. Abrams that if the leak per se is a violation of 
law that it is in the same category as everything else. This 
statute is very narrowly drawn. There is virtually no 
justification for leaking the name of an undercover agent.
    Let's get a little broader--grand juries. One of my 
problems here is I have seen grand jury leaks, illegal because 
grand jury by law is secret, that have actually made it hard 
for somebody to prove their innocence. So I have a rough time 
figuring out why do we justify grand jury leaks--or not 
justify, but not prosecute them. I have talked to prosecutors 
about leaks. They say--so it is not easy to--Mr. Abrams says 
prosecute them anyway. Most prosecutors will tell you with a 
shield law it is virtually impossible to prosecute leaks. And I 
have talked to people in the New York City D.A.'s office, in 
the Federal offices, so I don't think it is so easy to just 
pass that by. I think you are in an either/or situation.
    And then the tougher one--so those two are fairly narrow, 
even though grand jury leaks is a much broader situation than 
the other. And I have questions about whether a shield law 
should apply to them. I am just going to ramble here a little 
and then ask you all to comment.
    The third one is a tougher one. It is more elastic. It is 
national security, not imminent danger. I think most people 
would agree that the Pentagon Papers should have been made 
public. But when it just says national security, the Government 
for its own purposes can brand it national security when it 
should not be. So those are the three categories I look at 
this. Ninety-nine percent of leaks, they are good. They do not 
violate the law. The toughest cases, which these cases are--
this is the toughest case. I do not know what the expression 
is. I am far away from law school. Good case makes--bad case 
makes good--I don't know.
    [Laughter.]
    Mr. Pearlstine. Bad case makes bad law.
    Senator Schumer. Bad case makes bad law. This is one of 
those, unfortunately, for Mr. Cooper and certainly Ms. Miller. 
But those are narrow, whether it is grand jury or that, and 
then you deal with the secrecy issue.
    So I have a couple of questions here. And first, one other 
point. I agree with Professor Stone and not with Senator 
Feinstein. You want this to be a bright-line test because my 
first question which hasn't yet been proved is if there were a 
bright-line test, what is the relationship between the Category 
A of leaks and the Category B of leaks? Why should an FDA 
employee fear leaking if he knows or she knows that it is not a 
violation of law--and I would make it statutory, not 
departmental regulatory--to leak? So we need to establish the 
link between this hard case and the 99 percent easier cases.
    And then the second question is: If you do make that--but 
it has got to be bright line. Just to say balance it, that is 
going to inhibit journalists--that is going to inhibit leakers 
to go to journalists. But if it is a bright-line test, I know 
it is a grand jury, I am not sure I should leak. Or I would 
have to know the consequences to doing it because it is a 
violation of law, period.
    So, two questions. One, especially for those of you--you 
know, Mr. Safire--and, by the way, I am glad to see we have not 
a majority but 50 percent New Yorkers here at the table, and I 
particularly welcome the three of you, as I do welcome 
everybody else, of course. So what is the relationship, to Mr. 
Safire and Mr. Abrams, between Category A and Category B? Why 
should a law include Category B as well as Category A? Because 
it may get deadlocked, you certainly want to protect those 99 
percent, which there would be much broader consensus. And then 
the third question, the tough question is: How do you deal with 
Category C, the secrecy issue in general? You want a bright-
line test, but you do not want to allow self-serving by the 
Government to classify things as secret when they should not 
be.
    I have finished my questions, and I would just have the 
whole panel chime in.
    Mr. Stone. As I said earlier, I do think that the unlawful 
leak is different from the ordinary whistleblower situation and 
that the Government has a more legitimate interest and the 
source has less legitimate interest in claiming protection. 
There are various ways of dealing with that. One is to simply 
say that unlawful leaks are not protected at all. Another is to 
say unlawful leaks are fully protected and it makes no 
difference that it is unlawful. And in between, it seems to me 
there are two types of factors one might want to consider. One 
is the kind of qualified privilege, that is, how serious is the 
Government interest, and is it sufficient to justify invoking 
the privilege even though it was an unlawful leak? And the 
other is how valuable is the information?
    So the Pentagon Papers is completely different from the 
leak of the name of Valerie Plame in the context in which that 
leak took place. And so one could say that even if Daniel 
Ellsberg is protected and the New York Times or the Washington 
Post would not be required to disclose his identity because of 
the public value associated with the leak, even though 
unlawful, that doesn't need to extend to a leak of the identity 
of a CIA agent, which seems to serve no significant public 
value.
    Senator Schumer. So what you are saying is maybe limit 
the--
    Chairman Specter. Senator Schumer, you are 3 minutes over 
time. You have got I don't know how many questions pending.
    [Laughter.]
    Chairman Specter. How much more time do you need?
    Senator Schumer. I think these are interesting questions. 
Not much. I mean, I was just going to say, I was just going to 
comment, so what Stone is advocating is a balancing test just 
for a narrow ground and a clear bright-line test for most 
everything else.
    Mr. Stone. Precisely.
    Senator Schumer. Okay.
    Chairman Specter. Are there further answers from the panel?
    Mr. Abrams. Yes, I will just try one example, really. Even 
in the area of grand jury information--you could make a bright-
line exception--there are leaks, the BALCO leaks recently, 
where because of the leaks of grand jury information in the 
BALCO case, we had congressional investigations, proposals of 
legislation, new rules governing drugs in baseball and the 
like. I don't know how a balancing test would work. I mean, I 
appreciate one could simply throw it to a judge and say try to 
balance the general social harm of any grand jury leak against 
the possible social good of this particular leak. But I am just 
expressing concern about what we would be asking judges to do. 
It is difficult. I might take the liberty of writing a little 
bit to the Committee on your question, if I may.
    Senator Schumer. I would ask, without objection, you be 
given a week to submit some answers in writing, for all 
panelists, since I asked this whole line of questions.
    Chairman Specter. Anybody want to respond further to 
Senator Schumer's questions or submit answers in writing?
    Mr. Levine. Let me just make one point, Senator Specter, if 
I may.
    Chairman Specter. Sure.
    Mr. Levine. That is, I go back to where you started, 
Senator Schumer, with which I quite agree, that 99 percent of 
leaks are beneficial and there may be 1 percent that are not. 
The problem is where we currently stand, we are in jeopardy of 
losing the 99 percent to save the 1, and I think when you come 
right down to it, when the percentages tilt as much as they do, 
we ought to as a free society be willing to risk the 1 to get 
the 99.
    Senator Schumer. Just if the Chairman would indulge me, you 
could cut that the other way and just have a law that deals 
with all unlawful leaks and still save the 99.
    Mr. Levine. But there are a number in the 1 percent--the 
unlawful leaks that do fall in the 99 percent side.
    Chairman Specter. Thank you very much, Senator Schumer.
    Mr. Cooper, you mentioned Mark Felt, and certainly Bob 
Woodward has done a phenomenal job, and I am one of his many 
fans. I haven't read all of his books but have read some of 
them. When Mark Felt's identity was disclosed as Deep Throat 
recently and the comment was made that Mr. Felt had gone to Mr. 
Woodward because there was no one else to go to--he could not 
go to the higher-up in the FBI because Mr. Felt felt he had 
reason not to trust L. Patrick Gray, that he couldn't go to the 
White House because the White House was under investigation, 
and I was cheering him on back in 1974. But since then I have 
had a little more experience, and the thought crossed my mind: 
Why didn't Mr. Felt come to the Speaker of the House of 
Representatives or the Majority Leader? What he was really 
dealing with here amounted to potentially impeachable offenses? 
And if the comment is made to Bob Woodward, it goes to the 
Washington Post. If it goes to the Speaker of the House, who 
may take it to the Judiciary Committee Chairman--occasionally 
Chairmen of Judiciary Committees act--there might have been an 
earlier start of impeachment proceedings.
    Now, we do not quite get into all the ramifications of 
source, and nobody was about to go to jail, and nobody 
subpoenaed Bob Woodward to find out who Deep Throat was. But 
had that information been in the public domain, you would have 
had public officials who had the power to do something about it 
in a very tangible way--not that writing a series in the 
Washington Post didn't perhaps have the same result. This may 
be beyond the purview of our discussion, but when you mentioned 
him, that concern came to my mind. Do you think Mark Felt would 
have had a decent reception if he had gone to the Speaker of 
the House of Representatives or the Majority Leader of the 
Senate?
    Mr. Cooper. Well, Mr. Chairman, it is an interesting 
question you pose. I obviously cannot speak for Mr. Felt and 
what his motives were at the time. I do know that there are a 
number of people who have important information to disclose who 
feel more comfortable bringing them to journalists than they 
would to the Government Accountability Office or the Speaker of 
the House because they trust journalists to keep their 
confidences and believe that that is the most effective avenue 
for revealing what they have to say.
    Chairman Specter. Mr. Safire, you--
    Mr. Cooper. May I add one other thing, Mr. Chairman?
    Chairman Specter. Certainly.
    Mr. Cooper. I do think the experience of Mr. Felt, the more 
we learn about what happened, does show the difficulties of 
distinguishing between what might be called good leaks and bad 
leaks and the motives of leakers. I think, you know, as it 
emerges that much of what motivated Mr. Felt was, you know, 
bureaucratic warfare between the FBI and the White House and 
the FBI wanting to preserve its prerogatives to do some things, 
which in retrospect we wish did not, I think it is a reminder 
that trying to draw a bright line between the good leak and the 
bad leak, the good leaker and the bad leaker, is not as easy as 
we may think.
    Chairman Specter. Well, I think that is certainly true, but 
Mr. Felt was not without remedies, and you had a constitutional 
crisis in this country, and there are some public officials you 
can trust if you search hard.
    Mr. Safire, you were in the White House in President 
Nixon's time. You departed before all of this erupted.
    Mr. Safire. About a week before.
    [Laughter.]
    Chairman Specter. Did you have any special reason for your 
timing?
    [Laughter.]
    Mr. Safire. Blind luck.
    Mr. Abrams. Remember the Fifth Amendment, Bill.
    Mr. Safire. Blind luck, Mr. Chairman.
    Chairman Specter. He does not believe in waivers, Mr. 
Abrams.
    [Laughter.]
    Chairman Specter. What do you think about going to the 
Speaker of the House of Representatives or the Majority Leader 
in constitutional process and reporting it to some officials--
they are really law enforcement officials in a sense--to bring 
impeachment proceedings to really go to the place where some 
very effective action can be taken?
    Mr. Safire. Well, if I were Mark Felt at the time, being 
the Deputy to J. Edgar Hoover for many years, I would think 
twice about going to the Judiciary Committee because the 
Chairman would say, ``Hey, what is this about black-bag jobs 
and illegal wiretaps that you were in charge of? ''
    So there might be a reluctance on the part of a Government 
employee who has been doing some funny business to point to 
some funny business elsewhere. That is not a problem he would 
face going to the press. Maybe someday when his name would come 
out 30 years later, but at the time the smart thing for 
somebody who was out to either get even with an administration 
that did not give him the job that he wanted or was motivated 
by some noble motive that suddenly hit him after a lifetime of 
black-bag jobs and wiretaps, so he goes to the Washington Post.
    My only regret there is that he went to the wrong paper.
    [Laughter.]
    Chairman Specter. Spoken out of true principle.
    [Laughter.]
    Chairman Specter. I think if he had gone to the Speaker or 
the Majority Leader--Mansfield was the Majority Leader, a man 
of impeccable integrity--they would not have looked for other 
defalcations on his part. And if they had found them, law 
enforcement officials overlook the minor if you have something 
bigger, something more important to do.
    Well, I just raise that because in all of the commentary on 
Mr. Felt--and there was a lot of it--nobody ever suggested that 
there was someplace that he could have gone. And my comments 
have very limited circulation today, but I think people ought 
to know that there are places where you can go. And if you are 
dealing with potential impeachable offenses, that is of the 
utmost magnitude for the importance of this country, and there 
are remedies besides talking to the media. But I start from the 
proposition of being very concerned about reporters' sources 
and the great good the press has done over the years in 
exposing corruption and malfeasance.
    One final point before adjourning, and this has been a long 
and a very productive session, I think. Mr. Abrams, I want to 
come back for just a moment to the fine in 1978 that the New 
York Times paid and to discuss with you for just a moment or 
two at least my view of the difference between a jail sentence 
and a fine. I watch what is happening with these fines being 
levied, and the Judiciary Committee would like to put that on 
the agenda, too, as to--well, oversight of the Department of 
Justice as to whether these fines are really meaningful.
    I don't know when Corporation X pays Y dollars how much it 
really hurts anybody, but I do know a jail sentence is very, 
very tough medicine. And when Ford Firestone came up, I put a 
provision in the bill that I would like to expand, and we have 
legislation in the works, we put criminal penalties. If you 
knowingly and recklessly place someone's life in danger or 
grievous bodily harm, that constitutes actual malice, and that 
supports a prosecution for murder in the second degree under 
common law, which characteristically draws a 20-year sentence 
under common law.
    And we have a lot of corporate conduct and a great many 
lines where we have seen--in Ford Pinto, for example, they put 
the gas tank in a certain spot where it was dangerous and 
killed people because it saved $8. They made a calculation as 
to how much money it would save. And the prosecutor, as I 
recollect it, in Indiana went after Ford but did not have the 
resources to really do the job.
    We are going to be exploring whether that kind of criminal 
liability might attach where it really has an impact. Ford and 
GM pay punitive damages, which are infinitesimal when lives are 
taken. And we have seen what is happening in the pharmaceutical 
industry.
    So let me ask you, my question to you is: Is a fine really 
sufficient if--I am not saying the New York Times should have 
been fined or held in contempt or anything should have 
happened. But once you get to that point, is a fine really 
sufficient?
    Mr. Abrams. First, the fines in the 1978 matter--which 
totaled almost $300,000 and would have been considerably more 
if the trial had gone on longer. The only reason they were cut 
off is that they ended when the trial ended, and Mr. Farber, 
the journalist, was let out of jail and the judge lost the 
power to continue to fine the Times.
    Obviously different corporations have different tolerances 
for pain, and the amount of money has a direct impact on that. 
I mean, when--
    Mr. Safire. Three hundred thousand dollars back then was a 
lot of money.
    Mr. Abrams. When John L. Lewis' union was fined, you know, 
a million, two million dollars a day for the strike back in the 
1940s, that was, you know, an enormous amount of money. That 
can have and was supposed to have a major effect on the entity.
    I think it is hard to talk about the examples that you have 
cited, Senator, and mesh them with the journalistic examples 
that we have been talking about most of the morning. But I do 
think, indeed, I think I know that in the traditional corporate 
sense, the examples that you gave, even the risk of any 
corporate executive going to jail for doing the sorts of things 
that you were talking about would have a genuine, an enormous 
effect on corporate behavior.
    I remember when I was clerking in Wilmington, Delaware, a 
hundred years ago, it was not long after in Philadelphia the GE 
sentences were imposed.
    Chairman Specter. Did you have Professor Dreschen at Yale, 
Mr. Abrams?
    Mr. Abrams. No, I did not. But the impact on the 
marketplace of jailing a few executives in the GE case was 
enormous. And I look forward to the results of your hearings in 
that respect.
    Chairman Specter. Well, thank you very much, gentlemen. 
This has been one of our lengthier hearings to have people 
sitting so long in one place for some 2\1/2\ hours, but this is 
a matter which the Committee is going to pursue, and it has 
been enormously enlightening, and you drew quite a crowd. We 
have more Senators than witnesses. That is kind of unusual for 
this Committee.
    [Laughter.]
    Chairman Specter. Thank you all very much. That concludes 
the hearing.
    [Whereupon, at 11:58 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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