[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
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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
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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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