[Senate Hearing 109-1040]
[From the U.S. Government Publishing Office]
S. Hrg. 109-1040
REPORTERS' PRIVILEGE LEGISLATION: AN ADDITIONAL INVESTIGATION OF ISSUES
AND IMPLICATIONS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
OCTOBER 19, 2005
__________
Serial No. J-109-44
__________
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
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 70
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 2
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 100
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Clymer, Steven D., Professor of Law, Cornell Law School, Ithaca,
New York....................................................... 6
Davenport, Dale, Editorial Page Editor, The Patriot News,
Harrisburg, Pennsylvania....................................... 25
diGenova, Joseph E., Founding Partner, diGenova and Toensing,
LLP, Washington, D.C........................................... 4
Gordon, Anne K., Managing Editor, The Philadelphia Inquirer,
Philadelphia, Pennsylvania..................................... 23
Miller, Judith, Investigative Reporter and Senior Writer, The New
York Times, New York, New York................................. 19
Rosenberg, Chuck, U.S. Attorney for the Southern District of
Texas, on behalf of the department of Justice, Houston, Texas.. 3
Westin, David, President, ABC News, New York, New York........... 21
QUESTIONS AND ANSWERS
Responses of Steven Clymer to questions submitted by Senator
Durbin......................................................... 33
Responses of Dale Davenport to questions submitted by Senator
Leahy.......................................................... 37
Responses of Joseph diGenova to questions submitted by Senator
Durbin......................................................... 39
Responses of Judith Miller to questions submitted by Senator
Durbin......................................................... 40
Responses of Chuck Rosenberg to questions submitted by Senators
Kyl, Leahy and Durbin.......................................... 41
Responses of David Westin to questions submitted by Senators
Leahy and Durbin............................................... 51
SUBMISSIONS FOR THE RECORD
American Bar Association, Washington, D.C., statement............ 56
Clymer, Steven D., Professor of Law, Cornell Law School, Ithaca,
New York, statement............................................ 62
Davenport, Dale, Editorial Page Editor, The Patriot News,
Harrisburg, Pennsylvania, statement............................ 73
diGenova, Joseph E., Founding Partner, diGenova and Toensing,
LLP, Washington, D.C., statement and attachment................ 80
Gordon, Anne K., Managing Editor, The Philadelphia Inquirer,
Philadelphia, Pennsylvania, statement.......................... 96
Miller, Judith, Investigative Reporter and Senior Writer, The New
York Times, New York, New York, statement and attachment....... 102
Rosenberg, Chuck, U.S. Attorney for the Southern District of
Texas, on behalf of the Department of Justice, Houston, Texas,
statement and letter........................................... 109
Westin, David, President, ABC News, New York, New York, statement 123
REPORTERS' PRIVILEGE LEGISLATION: AN ADDITIONAL INVESTIGATION OF ISSUES
AND IMPLICATIONS
----------
WEDNESDAY, OCTOBER 19, 2005
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:45 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Kyl, DeWine, Sessions, Cornyn,
Feinstein, and Durbin.
Chairman Specter. Good morning, ladies and gentlemen.
The Judiciary Committee will now proceed with our second
hearing on the issue of reporters' privilege.
I regret our slight delay in starting this hearing. We have
made it a point on the Committee to be very punctual in
beginning, but at the moment we are deeply involved in the
confirmation proceedings of Ms. Harriet Miers, and there are
some issues we had to consider. We have met together with
Senator Leahy and the leadership on scheduling matters, and
there was a need for the Democrats to meet separately, which
they did yesterday, and Republicans have just met, so it has
run slightly into the 10:30 starting time. So to repeat, I
regret keeping people waiting here.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. The issue of the reporters' privilege has
come into very sharp national and international focus with the
incarceration of Ms. Judith Miller, who for 85 days was in a
detention center in Virginia.
My staff and I, among many others, visited her there to try
to gain some insights into the entire situation and there have
been reports about a chilling effect across the country on
reporters, and we are taking up the legislation, which has been
introduced in the House and Senate by Senator Lugar on our
body, and by Representative Pence in the House of
Representatives, to decide whether there ought to be a
privilege, and if so, to what extent it ought to be extended.
The issue has been a troublesome one since 1972 when the
Supreme Court in Branzburg v. Hayes said that neither the First
Amendment or common law exempts members of the press from
testifying before a grand jury in criminal proceedings. That
decision has created some confusion, contributed in large
measure to the concurrence of Justice Powell. Five circuits
have applied Branzburg to prevent journalists from withholding
information. Four of the circuits have a qualified privilege in
civil cases. Nine of the twelve circuits apply a balancing
test. And on the State level, 31 States plus the District of
Columbia have enacted reporters' shield statutes, and 18 States
have recognized such a privilege at common law.
There is no doubt about the value of investigative
reporting to the public interest in exposing corruption,
malfeasance, misconduct, waste, and the oft-quoted comment by
Jefferson cannot be repeated too often, if he really made it,
that he would prefer newspapers without Government as opposed
to Government without newspapers. That is quadrupled multiplied
hearsay. We talk about super precedents and super-duper
precedents. That one is worth repetition however many times it
has been said.
There are weighty considerations on law enforcement, on
their point of view, and national security interests. All of
those factors have to be taken into account by the Judiciary
Committee and then by the full Senate, and then by the
Congress.
I am going to yield back almost a full minute. We will have
other of the Democrats joining us. Senator Feinstein, this is
extemporaneous, but that does not pose any problem. Would you
care to take the ranking member's responsibility for an opening
statement?
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Well, I do not have an opening statement
prepared, Mr. Chairman, but let me just say this, because Mr.
Rosenberg is going to be testifying, and I am aware of the
position of Justice. I hope he will address the national
security provision of the shield law which was submitted to us,
which we had the prior hearing on.
The problem that I have is I do think it is very legitimate
before a Federal grand jury in an instance of national
security, and not necessarily when the challenge is immediate,
but when it is near or present, that there be some ability to
get information if a reporter has it, and so I would be most
interested in his comments along those lines.
And I thank you very much, Mr. Chairman.
Chairman Specter. Thank you, Senator Feinstein.
Our first witness is Mr. Chuck Rosenberg, United States
Attorney for the Southern District of Texas. He has served as
Chief of Staff to Deputy Attorney General James Comey,
Counselor to the Attorney General John Ashcroft, and as Counsel
to FBI Director Robert Mueller. We had hoped to have Mr. Comey
at the last hearing, and we are glad to have you here today,
Mr. Rosenberg, and look forward to your testimony.
STATEMENT OF HON. CHUCK ROSENBERG, U.S. ATTORNEY FOR THE
SOUTHERN DISTRICT OF TEXAS, ON BEHALF OF THE U.S. DEPARTMENT OF
JUSTICE, HOUSTON, TEXAS
Mr. Rosenberg. Thank you, Mr. Chairman, members of the
Committee. It is an honor to testify today.
For 33 years the Department of Justice has adhered
scrupulously to a demanding set of regulations that govern our
issuance of media subpoenas. We adhere to these regulations to
balance two critical interests: first to protect the vibrant
press, free to gather news on important issues, to use
confidential sources, and to act as a check on Government; and
second, to enforce Federal criminal law, to protect national
security and vital secrets and the public safety. And through
Republican and Democratic administrations alike, our internal
regulations have enabled us to balance those interests on a
case-by-case basis and to seek information about confidential
sources from the press only when it really, really matters.
For this discussion, Mr. Chairman, I believe the numbers
are useful. Over the last 14 years, which is the period of time
for which we have computerized records, we have issued
subpoenas to the media seeking confidential sources 12 times,
12 times in 14 years, less than one confidential source
subpoena per year. And each one of those 12 subpoenas was
reviewed carefully by senior career and political officials in
the Department and personally approved by the Attorney General.
So I think we must ask what is broken about the way we are
handling matters involving subpoenas to the media. We rarely
issue subpoenas to the media seeking information about
confidential sources, and when we do, it is only after
painstakingly careful review and meticulous adherence to our
internal guidelines.
We should not enter into this debate believing that the
First Amendment is under assault by the Department of Justice.
It manifestly is not. In fact, I believe any serious observer
of the Department of Justice would tell you that our track
record, our strict adherence to our own guidelines, and our
five levels of internal review are not the problem. Rather, the
overwhelming number of subpoenas issued to the media for
confidential source information arises in the context of
private litigation, and of course, when we are not a party to
the litigation, our guidelines do not apply. We play no role at
all. In short, I do not see anything in our work that justifies
discarding 33 years of careful practice which has served the
media and the Nation well.
The proposed legislation is problematic for many reasons,
which I discuss in detail in my written testimony, but here I
would like to briefly highlight certain key points, including
addressing the concerns that Senator Feinstein has raised.
First, it imposes inflexible mandatory standards in place
of our existing flexible, prudent guidelines; and second, in
the most urgent circumstances it prevents us from getting
information quickly when we need it the most to protect the
public. For example, the only exception in the bill to obtain
confidential source information comes in the narrow category of
cases involving imminent and actual harm to national security.
That provision, I submit, simply does not work. What of the
case where harm is imminent, but the harm is not to national
security? What happens when confidential source information
could help us recover a child that has been kidnapped. Under
the proposed bill, that confidential source information would
be off limits to us because that case is not a national
security case.
What of the case where national security is at risk but we
cannot demonstrate that harm is imminent? The exception, I
submit, is both too little and too late.
I also would encourage the media to question whether given
the restrained approach of the politically accountable Justice
Department leadership over the past 33 years, whether shifting
the focus of this exercise to the Judicial Branch would produce
more or perhaps less protection for journalists and their
sources?
I think this is a very important discussion, and I have
great respect for the people who have joined the debate. Simply
stated, the notion that the Justice Department is the problem
and that this legislation is the solution, I submit, is plain
wrong.
I am a career prosecutor. I participated in this process at
the Department. I have seen how it works. I know how meticulous
we are in our reviews. I know how rarely we seek information
from the press about confidential sources, and I know that when
we do it we do it for the right reasons. We believe that we
have been doing this the right way for decades. We strongly
oppose this bill as it applies to our work.
I thank you. I look forward to answering your questions.
[The prepared statement of Mr. Rosenberg appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Rosenberg.
I am going to ask the other two witnesses who are going to
be testifying against the shield law to come forward at this
time, Mr. Joseph diGenova and Professor Steven Clymer, if you
would come to the witness table, so that when we begin our
round of questioning, we will question all three witnesses who
are appearing in opposition to the proposed legislation.
Our next witness, Mr. Joe diGenova, is well known to the
Committee and to the Senate generally. He served as Counsel to
this Committee, also to Government Affairs and the Select
Intelligence Committee, and Chief Counsel and Staff Director
for the Senate Rules Committee, was the United States Attorney
for the District of Columbia for 5 years in the 1980's, and was
Independent Counsel, has a long resume of being involved in
some major investigations and prosecutions.
Thank you for joining us, Mr. diGenova, and the floor is
yours.
STATEMENT OF JOSEPH E. DIGENOVA, FOUNDING PARTNER, DIGENOVA AND
TOENSING, LLP, WASHINGTON, D.C.
Mr. diGenova. Thank you, Mr. Chairman.
Let me just say at the outset that my position may be a
little bit more nuance than opposition to the bill. I actually
see a need for the Congress to address this question. In my
testimony I have indicated that I oppose an absolute privilege
because I do not believe in common law there should be any
absolute privileges for the very reason that Mr. Rosenberg
gave, that there may be facts and circumstances warranting the
piercing of any privilege, including the attorney-client
privilege and a journalist privilege if this Committee chose to
establish one under Federal common law.
I do believe, however, that if in fact the Committee
decides to go down this route, it needs to establish some
procedural safeguards for the enforcement of these rights for a
journalist, the same way I believe they should it for lawyers.
Mr. Rosenberg has testified that the Department over the
years has done a superb job of supervising its internal
guidelines, and that there is no reason to address this
question. My proposal would be that given the purported success
of these guidelines in the Department using them, that Congress
should have no fear in enacting those guidelines into law, and
making them a legal requirement. Under their own terms, the
Justice Department guidelines create no enforceable legal
rights.
I believe that notwithstanding the purported success of the
Department in restraining itself in issuing subpoenas, since it
says that it has no problem complying with these guidelines, at
a minimum what the Committee should do is adopt those
guidelines as legislation, and consistent with Mr. Rosenberg's
suggestion, modify the legislation to take into account
specific instances to avoid what I call a manifest in justice,
or to deal with manifest necessity such as securing information
from a journalist about the location of a kidnapped child. All
of us understand the necessity for that, and the circumstances
which would lead a judge to, in a balancing test, certainly
agree that a reporter should be required to disgorge that
information. In addition, his national security exception,
where the Government might not be able to prove the actual
imminence of a threat, that can be handled through evidentiary
hearings and through presumptions which this Committee could
draft into law.
What I think the Committee needs to address in dealing with
this privilege is what happens on the ground in a courtroom.
And what happens on the ground in a courtroom, particularly in
the grand jury context, is that the person being subpoenaed,
whether it is a lawyer or a journalist, does not know what
evidence the prosecutor is telling the judge about. When you
address this question--and I strongly urge you to adopt the
Justice Department guidelines and put them into law--the
Department should have no objection to that since it says it
complies with it. In addition to doing that, you should adopt
rules under the Federal Rules of Criminal and Civil Procedure
for the manner in which hearings are to be conducted in these
key areas, whether it is a journalist or a lawyer. So that when
an attempt is made to pierce a vital privilege under U.S.
common law, there are safeguards which allow the person being
subpoenaed to have access to at least some of the evidence that
is being used against them to force the vitiation of the
privilege. This is a problem in the grand jury context which
has never been addressed. It was evident from the published
reports about the Judith Miller case and the Matt Cooper case
that the attorneys representing them were operating vastly in
the dark about the nature and extent of the information that
was being used to compel them to testify.
Now, there may be reasons in a given case that a judge
would order that that information not be turned over to the
other side so that a true adversarial proceeding could occur to
determine whether the privilege should be vitiated, but those
would be rare. That might happen in a national security case,
but I submit to you that this Congress is perfectly capable of
calibrating the circumstances under which information should be
turned over to someone who is being subpoenaed. In the case of
a reporter I think it is vitally important, and obviously in
the case of a lawyer, having been subpoenaed myself and been
threatened with jail, I can assure you that when you do not
know, as our attorney said in the Third Circuit, what the other
side has, you are there with a hammer trying to hit a pinata to
find out what is on the inside.
So I would urge this Committee to adopt the Justice
Department guidelines into law, create procedural safeguards
for any hearings around them, and finally, require sworn
testimony about the basis for the crime.
Thank you, Mr. Chairman.
[The prepared statement of Mr. diGenova appears as a
submission for the record.]
Chairman Specter. Thank you, Mr. diGenova.
Our next witness on this panel is Mr. Steven Clymer, who
worked as a Pennsylvania Assistant District Attorney, and 7
years as an Assistant U.S. Attorney for the Central District of
California, been on the Cornell Law School faculty since 1995.
Thank you very much for joining us today, Professor Clymer, and
we look forward to your testimony.
STATEMENT OF STEVEN D. CLYMER, PROFESSOR OF LAW, CORNELL LAW
SCHOOL, ITHACA, NEW YORK
Mr. Clymer. Thank you for inviting me today.
If Congress enacts a reporters' privilege, it should be
more limited than the proposals currently pending before this
body. I want to describe two ways I think it has to be limited
if there is to be a reporters' privilege.
First of all, a Federal reporters' privilege that protects
criminal disclosures to reporters would undercut important
Federal criminal statutes. Most disclosures to the news media
do not in and of themselves violate Federal criminal laws.
Unfortunately, some disclosures to the news media do. These
laws are designed to safeguard information, that if improperly
disclosed could jeopardize not only national security, but the
safety of law enforcement officials, such as information about
whether a search warrant is going to be executed. It could
undermine criminal investigations, and it could destroy the
reputations of innocent people.
Some proposals for a Federal reporters' privilege,
including S. 1419, draw no distinction between legal
disclosures and illegal disclosures. Proposals like this would
help to conceal the identity of sources whose disclosures
constitute Federal felonies. In this regard the proposed
privilege is more extensive than other well-recognized
privileges such as the attorney-client privilege which has a
crime-fraud exception. Any reporters' privilege that is enacted
should contain a similar exception.
Failure to exempt illegal disclosures from coverage would
conflict with the very Federal laws that criminalize those
disclosures. The privileges would encourage the disclosures
that the criminal statutes are meant to deter. That sort of
contradictory message from Congress can only breed disrespect
for the laws criminalizing those sorts of disclosures.
In addition, failure to exempt illegal disclosures
effectively would immunize people who made those disclosures as
long as they disclosed it to a member of the news media. If
investigators ask the source whether he made the disclosure,
the source could assert the Fifth Amendment privilege, thereby
curtailing that method of investigation. If there was a
reporters' privilege that protected illegal as well as legal
disclosures, it would prevent any investigator speaking to the
reporter about the source of the leaks. As a result, no one
could determine who leaked the information or prove it in
court. Such an outcome would signal that illegal disclosures of
classified or otherwise sensitive information such as wiretap
information, tax information, grand jury information, no matter
how harmful to national security, to police safety, to law
enforcement interests or to the personal privacy of innocent
people, are immune from criminal prosecution as long as they
are made to a recipient who could qualify as a reporter under
the privilege.
In this regard I think it is worth noting that S. 1419 has
a definition of ``covered person'' who could be potentially
broad enough so that a disclosure of sensitive or classified
information to an Internet blogger would be covered.
My second point, Federal reporters' privilege should not
guard against invalid assertions of the privilege. In order to
do so, courts, not reporters, should determine whether the
privilege applies. There is no good reason to conceal the
identity of the source who does not want to be kept secret. Any
reporters' privilege should apply only if some preconditions
are met, namely that the source has requested an assurance of
confidentiality and has received such an assurance, and later
has not waived any confidentially. I note in passing that S.
1419 is flawed in this regard as well. It applies even if the
source has never sought confidentiality, never received
confidentiality, and has in fact waived confidentiality.
Other privileges have preconditions like this, and if a
witness asserts the privilege, the opponent of the privilege
has the right to have a court make a determination whether the
preconditions have been met. Courts, not witnesses in other
contexts, decide whether a privilege applies.
The same should hold true for any reporters' privilege.
Recent, widely publicized events demonstrate that courts and
litigants should not be required to accept reporters'
assertions of the privilege at face value. In Providence, Rhode
Island, despite a court order, a reporter named Jim Taricani
refused to disclose the identity of a source. After being held
in contempt of court, the source came forward and said he had
never asked to be confidential in the first place. Taricani
disputes that claim.
Here in Washington, Judith Miller refused to comply with a
court order requiring her to testify before a Federal grand
jury about a source. After she had been held in contempt and
spent 85 days in Federal custody, she claimed that her source
finally had given her permission to reveal his identity, but
both the source and his lawyer dispute that account, saying
that they had waived confidentiality long ago. It is not clear
why the reporters' claims for the need for confidentiality in
these cases were contradicted by their own sources.
What is clear, though, is that those assertions should not
be accepted at face value. If they are, we would stand to lose
probative evidence for no good reason. Instead, like other
privileges, courts, not witnesses, should determine the
existence of the privilege.
In conclusion let me say that the free flow of information
to reporters clearly benefits society, but it comes at a price
if there is a privilege that is necessary to guard it. The
price is a significant one, limits on the truth-seeking
functions of both grand juries and courts. Those limits
threaten to impair efforts to achieve justice in important
matters, and they should be considered very carefully before
deciding the scope of any reporters' privilege.
[The prepared statement of Mr. Clymer appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Clymer. We
will now begin our customary 5-minute rounds. I notice,
Professor Clymer, in your resume, you were Pennsylvania
Assistant District Attorney. Where?
Mr. Clymer. Philadelphia, sir.
Chairman Specter. Philadelphia. Was that after my time or
before my time?
Mr. Clymer. It was after your time, sir.
Chairman Specter. I am glad to establish the chronology.
Mr. Clymer. I was proud to serve in the office that you
ran, sir.
Chairman Specter. Thank you. That is the best job in the
world, being an Assistant District Attorney, especially in
Philadelphia County.
Mr. diGenova, you said you were threatened with jail. Did
you go to jail?
Mr. diGenova. We did not, Your Honor. My--
Chairman Specter. Who is this ``we?''
Mr. diGenova. My law partner and I, Victoria Toensing. We
did not go to jail because we challenged the subpoena and moved
to quash, lost in the district court--
Chairman Specter. You did not go to jail and you did not
succumb to the threats.
Mr. diGenova. We did not, Your Honor. We went to the Third
Circuit where we won, and the history of that is what has led
me to be concerned about the way--
Chairman Specter. That is enough.
[Laughter.]
Chairman Specter. I only have 5 minutes.
Mr. diGenova. Yes, sir.
Chairman Specter. Mr. Rosenberg, as Professor Clymer has
already noted, I was a prosecuting attorney. It would have been
very easy to go to newspaper reporters, would have made it much
simpler for me to conduct investigations, but I got along. 33
States have shield laws, 18 a common law. How can the States
get along respecting reporters' privilege, and the Federal
Government cannot? Are the States just not doing their job or
are you so much more effective?
Mr. Rosenberg. Not at all. That is an excellent question,
Senator. First of all, 36 of the States have a qualified
privilege, not absolute. But more importantly, the Federal
Government--
Chairman Specter. Will you stop on qualified? That is an
area worth exploring. I do not know that we are going to grant
any absolute privileges. We are just in the middle on the
Roberts' hearings of the deliberative process privilege, which
is qualified. But here you have a reporter who is in jail for
85 days, and millions of Americans were wondering why. There
may be a very good reason why she was in jail. I am one of
those who was wondering why she was in jail, and I asked Ms.
Miller, and she could not tell me why she was in jail.
This Committee is in the process of seeking to find out, as
a matter of our oversight, from the Special Prosecutor why she
was in jail. What were the factors of such great importance to
have a reporter in jail for 85 days, and to have an obvious
chilling effect on reporters elsewhere? Whether they should
have been chilled or not, there is no doubt that they were
chilled.
Congress has very, very substantial oversight authority
with respect to legislation and with respect to investigations,
and so far our efforts to find out what is behind the proffer
of the Special Prosecutor, have gone to no avail. This
Committee is not finished on its oversight responsibilities
with respect to this matter as to what is the reason for what
has occurred. And when Attorney General Gonzales sat where you
are sitting, we went over in great detail the authority for
this Committee's oversight authority. It does not exactly apply
to a Special Prosecutor because he stands in a little different
spot, but I think no higher than the Attorney General. But if
all the States can get along with a qualified privilege at
least, why not the Federal Government?
Mr. Rosenberg. That is an excellent question, Senator.
The Federal Government, I submit, has a uniquely different
role, responsible for conducting international diplomacy,
waging war, classifying information. The State of Pennsylvania,
for instance, Commonwealth--excuse me--would not classify a
document as secret or top secret. It does not contain, it does
not possess, it does not generate, it--
Chairman Specter. None of that is involved in the Judith
Miller case.
Mr. Rosenberg. I do not know what specifically is involved
in the Judith Miller case, but if you ask, Senator, why this is
different than the States, why the State analogy is inapt--
Chairman Specter. Pardon me for interrupting, but I have
got 14 seconds left.
[Laughter.]
Chairman Specter. And I stop when my red light is on. I
expect everybody else to also.
But why should the presiding judge not make an inquiry as
to what the Special Prosecutor is after and balance that
against 85 days in jail?
Mr. Rosenberg. May I have permission to answer that?
Chairman Specter. Oh, no. You are directed to answer that.
[Laughter.]
Mr. Rosenberg. They will both work, Mr. Chairman. Again, I
do not know the specific facts of that case. I have not learned
them. Mr. Fitzgerald is a friend of mine, but I have not
discussed the case with him. I have studiously avoided it.
However--
Chairman Specter. Do you think it would have done you any
good if you had not studiously avoided him and tried to discuss
the case with him?
Mr. Rosenberg. I do not know.
Chairman Specter. Do you think he would tell you more than
he would tell me?
Mr. Rosenberg. Probably not.
Chairman Specter. I agree. Go ahead, Mr. Rosenberg.
Mr. Rosenberg. But, Mr. Chairman, we have a unique
responsibility. As Professor Clymer noted, when confidential,
secret, top secret information is leaked, that is not a
violation of Pennsylvania law or Ohio law or the law of any
State. It is a violation of Federal law. Because we have unique
responsibilities to protect the national security and to
safeguard our Nation's secrets, the fact that there may be a
State privilege does not quite answer the question of whether
there should be a Federal privilege.
Chairman Specter. Thank you, Mr. Rosenberg.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Mr. Rosenberg, let me refer to page 2 and 3 of the bill,
the Dodd bill, which essentially has the exceptions. What
problems do you have on those pages, the national security and
the law enforcement?
Mr. Rosenberg. Senator, there are several problems that I
see. First, by throwing this open to the courts, we are going
to have circuit-by-circuit determinations, for instance, of
what ``imminence'' means, what is national security, who is and
who is not a covered person. Somebody could be covered in the
Third Circuit but not in the Fourth. Some set of facts could be
construed to be imminent in the Fifth Circuit but not in the
Sixth.
The fact is that we make a very careful determination at
the Department of Justice, and we draw on 33 years of
experience to do that, and as I mentioned, have only issued
these subpoenas in a very small number of cases, and I refer
now to confidential source subpoenas.
The problem is that if you throw it open to the courts,
number one, you will have those varying interpretations
inevitably. But there is another problem and I think it is just
as pressing.
Senator Feinstein. This is your argument then--I do not
mean to interrupt you--but to have no bill at all; is that
right?
Mr. Rosenberg. That is right.
Senator Feinstein. How would you feel if Mr. diGenova's
codification of your procedures were made into law?
Mr. Rosenberg. Not much better, Senator.
Senator Feinstein. Because of the differential between
courts?
Mr. Rosenberg. Yes, in part, but there is another problem.
One of the things that we can do, if we need to, is move very
fast. We do not do it often. As my former boss, Jim Comey said,
``We often move at the speed of wood.'' But when we need to
move fast, we can. And the problem is that if you have to go to
court--and most of the time with the things we do, we of course
do go to court. But if you have to go to court in an imminent
harm situation, we do not know how long that is going to take,
whether it is appealed, how many layers it goes up. We need to
be able to move.
Senator Feinstein. Can I stop you there?
Mr. Rosenberg. Yes.
Senator Feinstein. I would like to have Mr. diGenova
respond to that, and Dr. Clymer if he wishes to.
Mr. diGenova. Certainly, Senator. The situation is such
that it is--there are always worse case scenarios.
Senator Feinstein. No, no, no, no. Stop for a minute, Joe.
What he is saying is that the DOJ rules set a basic standard
which avoids the courts essentially, and therefore, through
negotiation, they are able, they believe, to effect a clear
system.
Mr. diGenova. They can still do that if they were enacted
into law. That would not prevent negotiation. Someone has to go
to court and file a motion to quash a subpoena. At that point,
even before that, they will do the same negotiating they do
with news organizations every day before the news organization
ever files a motion to quash on a subpoena. Once that motion to
quash is filed, they are in the same position today that they
would be with the guidelines enacted into law. There is only
one difference, they would have to follow the guidelines, which
notwithstanding what the Department says here today, they do
not always do.
Senator Feinstein. Dr. Clymer, would you respond?
Mr. Clymer. I think there is an additional problem with
enacting the DOJ guidelines as law. In my experience the
Department is perhaps overly rigorous in the application of
those guidelines, if anything. If they are enacted into the
law, the Department no longer has the obligation or the need to
do that and, instead, the courts decide.
In some measure, it may be easier to get a subpoena to a
media source through the court system than it is to get it
through main Justice. You lose the uniformity, you lose the
institutional memory about what gets done and what doesn't get
done, and I am not sure you really gain any benefit. Unless
there has been some evidence that there has been a abuse of the
process, it seems to me there is no problem to fix.
Senator Feinstein. Quick question of all of you. If there
were to be a bill, should it preempt the State laws that now
exist?
Mr. Clymer. I think that is a bad idea. I don't think this
body should be telling State courts what is admissible or
inadmissible in State court proceedings.
Senator Feinstein. Does everybody agree with that?
Mr. diGenova. I agree with that, Senator.
Mr. Rosenberg. I don't really have a view on that, Senator.
Senator Feinstein. So, Mr. Rosenberg, let me just be clear.
Main Justice is opposed to any bill, no matter how good it
might be. Is that correct?
Mr. Rosenberg. We are certainly opposed to this bill. We
always will work with this Committee if there is something that
we can do to help make a bill better. But this bill does not
help. It hurts law enforcement.
Senator Feinstein. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Feinstein.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman, for holding this
important hearing.
Obviously, this is a question of competing values that we
are trying to reconcile here. Mr. Rosenberg, in light of the
Branzburg v. Hayes decision, where the Supreme Court said there
is no constitutional privilege, on what basis would a reporter
offer confidentiality under all circumstances to a source?
Mr. Rosenberg. Well, a reporter is in a bit of a bind,
then, Senator. What Branzburg said is that there is no
privilege if an investigation is conducted in good faith. And I
add that gloss because I think it is an important gloss. If an
investigation, God forbid, is brought in bad faith or merely to
harass a reporter, Branzburg left open the possibility that you
can go to court and seek to quash it on First Amendment
grounds, because the First Amendment would override a bad-faith
investigation, as it should.
Senator Cornyn. But it is a matter of law, correct?, that a
reporter cannot guarantee confidentiality.
Mr. Rosenberg. I believe that is correct, Senator, but if I
may just add quickly. Somehow it has gotten into the drinking
water that all leaks are beneficial. Some, frankly, are venal.
Some, frankly, as Professor Clymer noted, are a crime in and of
themselves. We only--and when I say ``we,'' the Department of
Justice seeks confidential-source information in a very narrow
set of circumstances, when, for instance, the leak itself is a
crime. We are not going after whistleblowers, and I know our
history bears that out.
Senator Cornyn. Professor Clymer, the Court's decision in
Branzburg said that if the Court was going to recognize a
constitutional privilege for journalists, then they would in
effect be in the business of defining who is and who is not a
journalist. And to me, it strikes me as one of the most
difficult aspects of what we are being asked to do here,
because I don't know whether that would apply with equal force
to the journalist who works for the New York Times or
Washington Post or Dallas Morning News or Houston Chronicle, or
Al-Jazeera or perhaps an Internet blogger who has a cell phone
with a camera and maybe a recorder and a laptop computer and is
capable of publishing information with almost equal ease of
what we would consider to be a professional journalist.
Would you tell us how we are going to do that?
Mr. Clymer. Well, I think there are a couple of problems
there, Senator. The first problem is just the language used in
any bill, and the proposed bill before the body has language
that I think could easily be read to apply to an Internet
blogger and would apply to Al-Jazeera. And so the proposal
before the Senate now would make those covered people, which
would mean that disclosures to those entities would be
privileged.
The second problem is that even if Congress tries to limit
or carefully draft the bill to avoid that problem, there is no
telling how courts may interpret it in light of Fifth Amendment
or other constitutional concerns. They may decide that you
cannot favor one group of media over another group of media.
And so if you are going to give the privilege to the New York
Times, you necessarily have to give it to the Internet blogger
as well.
I don't have a proposed solution to that problem. All I can
tell you is I think it is a problem and I think it is a problem
that deserves very serious consideration.
Senator Cornyn. Well, obviously the Internet bloggers, and
perhaps others, don't observe the same professional ethics or
have the same review by editors and others that are trying to
make sure that they are performing their job in a responsible
and accurate sort of way.
Let me ask, Mr. Rosenberg, in the 42 seconds I have
remaining here, in Mr. Fitzgerald's case, because he is a
Special Counsel, is he bound by the Department of Justice
guidelines?
Mr. Rosenberg. Excellent question, Senator. My
understanding, because he is appointed by the Attorney General,
in essence, yes, he is.
Senator Cornyn. But the Attorney General recused himself.
Mr. Rosenberg. And made Mr. Comey the Acting Attorney
General for purposes of that investigation. The Acting Attorney
General, Deputy Attorney General Comey, then delegated his
authority to Mr. Fitzgerald.
Senator Cornyn. Is Mr. Fitzgerald on record as
acknowledging that he is bound by the Department of Justice
guidelines?
Mr. Rosenberg. I don't know that he is on record, but if
you look at Judge Hogan's opinion, you will see that he
complied with all the guidelines.
Senator Cornyn. Thank you very much.
Chairman Specter. Thank you very much, Senator Cornyn.
Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman, and thank you to
the panel.
Mr. Rosenberg, the hypothetical that you used about a
kidnapping victim is exactly the same hypothetical I posed to
the last panel and they couldn't come up with an answer. And as
I read this law that we are considering here, if in fact a 5-
year-old girl is kidnapped, being held somewhere, and the
kidnapper calls a reporter to describe in gruesome detail what
is happening to that little girl, if confidentiality was
promised to the person, the kidnapper, then under this law
there would be no way for the Department of Justice, dealing
with a Federal crime, to compel the disclosure of that
kidnapper. Is that your understanding?
Mr. Rosenberg. Yes, sir.
Senator Durbin. And that, of course, defies the basic
attorney-client privilege, which says if the commission of a
crime is involved, the privilege does not apply.
Mr. Rosenberg. It indeed sweeps more broadly, yes, sir.
Senator Durbin. So let's take that to the next--that is the
easy-case scenario. Now let's take it to the more-difficult-
case scenario. Now we are dealing with the whistleblower, and
the whistleblower is disclosing classified information to the
reporter. The disclosure of that information may be the
commission of a crime.
Mr. Rosenberg. Yes, sir.
Senator Durbin. So how would you deal with that exception,
or that situation?
Mr. Rosenberg. Well, the test for a national security case
would be imminent actual harm. If we could not show that that
leak was imminent actual harm, we may not be able to reach it
through this bill. In other words, it may be off limits, even
though a crime.
Senator Durbin. And of course it could be more technical
and not classified information, but some other protection of
Federal law that would protect the disclosure of certain
information which is being given for the purpose of disclosing
wrongdoing by other people in the Government.
Mr. Rosenberg. Yes, sir. And as I noted earlier, it might
be something we could reach in one circuit but not in another,
setting up a truly bizarre situation.
Senator Durbin. Let me ask you the more basic thing, and I
don't know how we get to this point. In the Valerie Plame case,
which we are dealing with here, we weren't, obviously, dealing
with noble intent or public good or an effort to use the press
to disclose wrongdoing. What appeared here to be, what happened
with the Novak disclosure, was venal, it was political, and it
may have been the commission of a crime itself. How do you get
to the question of the intent of the disclosure of the
information? Should that be part of this conversation?
Mr. Rosenberg. Senator Durbin, if you permit me not to
speak about that matter. It is an ongoing investigation and I
don't think it would be appropriate.
Senator Durbin. Certainly.
Mr. Rosenberg. But your more general question is a
difficult one. With this privilege enacted, we have to show
imminent harm to national security. If we can show that, then
whether the motive was venal or not, we might be able to get to
it.
Senator Durbin. Mr. Clymer, let me ask you. I hope I will
be here when Ms. Miller testifies, but there appears to be a
problem that she went through with the attorney for Mr. Libby
as to whether or not the confidentiality was waived, whether
she understood it to be waived by free will or coerced. How
would you address that? I mean, you raised that as one of the
issues here, the waiver of the confidentiality itself.
Mr. Clymer. I think that any privilege should address it
the same way other privileges address it, which is to say the
witness asserts the privilege, the opponent of the privilege
has the ability to challenge that assertion, and a court--not
the witness, but a court--gets to decide whether or not the
privilege has been validly asserted. That may require in some
instances that the court conduct an in camera hearing with the
source, yet undisclosed to the party trying to identify the
source, but to determine whether the source waived the
privilege, whether the source ever asked for confidentiality,
and whether, if the source did waive, whether the waiver is
valid.
Senator Durbin. And your argument is that is consistent
with other privileges and how they are asserted in court
proceedings?
Mr. Clymer. I have done it. As a prosecutor, I have had
people assert the Fifth Amendment privilege and I have claimed
that it is an invalid assertion, we have a hearing, and the
court decides. I have done it with attorney-client privilege,
and we have a hearing and the court decides. It should not be
up to the reporter to decide, and the opponent should not have
to accept the reporter's assertion at face value.
Senator Durbin. How would you improve the current law
before us other than this area, in terms of the waiver of this
privilege?
Mr. Clymer. In 35 seconds?
Senator Durbin. I know. That is one of the problems.
[Laughter.]
Mr. Clymer. A couple of problems. No. 1, this law as
written also protects non-confidential-source material in the
news media. That is an entirely separate issue than the one we
have been talking about, and I think it requires separate and
very close scrutiny because it is not clear to me that there
are good reasons for a separate privilege for non-confidential-
source material.
Second, as I said, I believe that it is a mistake for a
body that passes laws making certain disclosures crimes, to
turn around and say we are going to conceal the identity of the
person as long as they make the disclosure to a media person.
Those are my two biggest concerns.
Senator Durbin. The second one may be a tough hurdle to
clear.
Mr. Clymer. I agree, sir, it is.
And then the third one is the one you just raised, which is
the issue about who gets to decide if the privilege is validly
asserted.
Senator Durbin. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
The American criminal process has always been a pursuit of
truth. We have had historically certain limited privileges for
certain individuals. When you go to law school, you study each
one of those, and they are defended and argued for and against,
and you have cases that show how abuses occur with the
privileges and cases that demonstrate why the privileges are
legitimate--the priest-penitent, the husband-wife, and many
states have a reporter privilege.
I think, though, the first principle we should consider is
this: If you have confidence in our Government--and I do--then
to deny the investigators of that Government the ability to
find truth is a compromise on the ideal of the American legal
system. You have to justify that compromise through a rational
analysis.
So I guess that is where we are today, and I am interested
in looking at this. It does strike me quite clearly--and just
briefly, because you can see how short our time is--I would ask
each of you, would you agree that the position of the United
States Government that deals with international relations, that
deals with national security, terrorism, war, and the ability
of our Government to unleash deadly force against enemies and
have those enemies desire to unleash deadly force on our
soldiers and our people, even, that it is a--we have to be more
careful than most States. Would you disagree with that, Joe,
and would you--
Mr. diGenova. I would not, Senator. I would agree with
that.
Senator Sessions. Professor Clymer.
Mr. Clymer. I also agree.
Senator Sessions. Mr. Rosenberg.
Mr. Rosenberg. I agree.
Senator Sessions. You have already stated that in your
remarks. And I think that is true. I was asked by one of my
newspapers about it and all the States have it. I started
thinking about that, well, why has the U.S. Congress not passed
such a law? And I think it is a qualitative difference.
Now, Professor Clymer, you talked about the lawyer-client
privilege, I believe, or maybe both of you did. But if a lawyer
advises a client on how to commit a crime or, in conversation
with that client about a crime, takes steps to further that
crime, the privilege does not continue. Is that correct?
Mr. Clymer. That is correct. In fact, if the communication
at issue was made for the purposes of furthering a crime or a
fraud, there is a well established exception that applies in
the privilege--
Senator Sessions. I assume all of you would agree.
All right. So it seems to me, now, that if a member of the
United States Government, in violation of the security rules of
that Government, provides information that is classified to a
reporter and that reporter broadcasts it, if it was a lawyer
client, the privilege certainly would not apply in that
instance because they would be aiding and abetting the crime or
actually being a co-conspirator or a co-participant in the
crime. Is that correct?
Mr. Clymer. Although it is worth pointing out that the
attorney-client privilege does not require that the attorney be
involved in the criminal conduct. If the client asked the
attorney questions and the client intends to commit a crime by
asking those questions, the attorney can be a completely
innocent party and the communication still is not privileged.
Senator Sessions. Well, but, you know, he has to be
advising the client on how to commit the crime, does he not?
Victoria, I see back there, says no.
Mr. diGenova. Actually, Senator, in most of the instance
where the attorney-client privilege is pierced, it is not
because the lawyer was wittingly involved, it is that the
lawyer was used unwittingly by the client, they find out about
it later, the courts seek their testimony, and the lawyer is
delighted to testify about what they were told. That is the
majority of the cases where the privilege is pierced.
Senator Sessions. Well, I could see that, and you make a
good point. Well, at any rate, those are the reasons I think we
need to be careful here. This is a big deal. It is something
that my initial inclination would be, well, why not be
supportive of our media? One reason Senator Specter never
called a reporter before the grand jury in Philadelphia is he
had to face The Philadelphia Inquirer and they have ink by the
barrel. I mean, there is a political reality there. So even the
Department of Justice has to be careful, because you take a lot
of abuse if you bring a reporter. So there is an inherent
discipline on the Government not to abuse this power.
Mr. Rosenberg. May I just have a moment, Senator, to
respond to that?
Senator Sessions. Yes.
Mr. Rosenberg. You are exactly right. And that is why not
only do we adhere so closely to our internal guidelines, but I
can tell you, they are rather strict. We have to make all
reasonable attempts to obtain information from alternative
sources first. Then we must negotiate with the media. And then,
if that fails, we may seek permission, if there are reasonable
grounds to believe a crime has occurred and the information is
essential--that is the word in our guidelines--essential to a
successful investigation. And that is why, if you look at the
past 14 years, we have only issued 12 confidential-source
subpoenas. We take this responsibility very seriously.
Senator Sessions. My time has expired.
Thank you very much, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Sessions.
Ordinarily, we limit it to one round. But let us go forward
with a few additional questions here.
Mr. Rosenberg, five circuits have applied Branzburg to
prevent journalists withholding information to the Government.
Four other circuits recognize a qualified privilege. The law in
the D.C. Circuit appears to be unsettled. Isn't this the kind
of a situation on an important issue of public policy that
there ought to be uniformity among the circuits, so that there
is a special reason for Congress to intervene?
Mr. Rosenberg. Well, I don't believe there is reason to
intervene, but it does raise an ancillary point that I think is
important. I don't think Branzburg is that unsettled. I think
if there is a good-faith grand jury investigation, then there
is no privilege. And that is what the D.C. Circuit recently
said. But it goes back to an earlier point in our discussion--
Senator Feinstein--when we talked about how inevitably
different circuits are going to judge parts of this bill in
different ways. And that is a fundamental problem with the
legislation.
Chairman Specter. Well, Mr. Rosenberg, is it incorrect that
five circuits have said there is no privilege at all and four
circuits use a balancing test?
Mr. Rosenberg. I believe, Senator, but I will check, that
that was in the civil context. In other words, for a criminal
grand jury investigation brought in good faith, I think there
was one aberrant decision that I know of in the Third Circuit,
a 1992 case called Williams. Absent that, I believe, in a
criminal grand jury context, good-faith investigation,
Branzburg is settled law.
Chairman Specter. Well, that is not my staff's research.
Mr. Rosenberg. I could be wrong. And I am happy to be
corrected.
Chairman Specter. Well, any of us could be wrong. We will
double-check that. But you say there is at least a distinction
in the Third Circuit, which moves in a different direction?
Mr. Rosenberg. There is a 1992 Third Circuit case, I
believe, In re Williams, which the Third Circuit--it was a
split panel, by the way, evenly divided, I believe--improperly
focused on Justice Powell's concurrence in Branzburg to find
that there could be a qualified privilege in the grand jury
context, which I think is a misreading of Branzburg. I think
absent that--and again, I am confining my analysis to criminal
grand jury cases brought in good faith.
Chairman Specter. Well, OK, you may think it is a
misreading of Branzburg, but the Third Circuit doesn't.
Mr. Rosenberg. And they win.
Chairman Specter. The Third Circuit is a very important
circuit. It covers Pennsylvania. Right, Professor Clymer?
Mr. Clymer. Absolutely.
[Laughter.]
Chairman Specter. But there is a special need for Congress
to come into it if the circuits are divided.
Mr. diGenova, you had commented about the need to have
access to discovery so that there could be information
presented to a court implementing a balancing test?
Mr. diGenova. Yes.
Chairman Specter. Would you expand on what you had in mind
there?
Mr. diGenova. Yes, Mr. Chairman. As a result of experiences
in the area both with the reporters' privilege and the
attorney-client privilege, in the grand jury context people who
are seeking to challenge the subpoenas are not entitled to get
the ex parte information that is given to the court. In those
two situations, where the privileges are quite substantial and
important, the absence of having access to that information--
Chairman Specter. Well, let me interrupt you because I have
a minute-20 left, would that idea be applied conceptually to
Ms. Miller's case, where--
Mr. diGenova. Oh, absolutely.
Chairman Specter--[continuing]. Where you think she should
have had the right to know what the background was so that
there could have been a weighing test by the Federal judge in
charge--Judge Hogan, who is in charge of the Federal grand
jury?
Mr. diGenova. Yes. Absolutely. Because only the Government
knows the ex parte communication with the court. The person
challenging the subpoena does not.
Chairman Specter. Professor Clymer, do you agree with Mr.
diGenova?
Mr. Clymer. No.
Chairman Specter. Why not?
Mr. Clymer. I think it would be a bad idea if a person who
was merely a witness in a grand jury investigation would be
able to gain access to 6(e) material, which is essentially what
Mr. diGenova is suggesting. I think it would undermine the
effectiveness and the function and the historical performance
of Federal grand juries.
Chairman Specter. Why do you say that? Why shouldn't that
determination be made by a judge, to know what is in the
background, what--
Mr. diGenova. I don't mean to suggest, Senator, that the
judge should not have access to that information. I mean to
suggest, I don't see that a person--
Chairman Specter. So you think the judge should have access
to it on a balancing test?
Mr. diGenova. Well, the judge should have access to the
information if it is necessary to make a determination. For
example, the D.C. Circuit had access to confidential
information in the case involving the Judith Miller subpoena.
Chairman Specter. Senator Feinstein, do you care to ask
additional questions?
Senator Feinstein. No, Mr. Chairman. I am very anxious to
have the next panel.
Chairman Specter. We will move right to them unless Senator
Session intercedes.
Thank you very much, Mr. Rosenberg. Thank you, Professor
Clymer. Thank you, Mr. diGenova.
We now turn to our next panel, Ms. Judith Miller, Mr. David
Westin, Ms. Anne Gordon, Mr. Dale Davenport.
Our first witness on this panel is Ms. Judith Miller,
author and Pulitzer Prize-winning correspondent for the New
York Times, writing about national security issues with
emphasis on terrorism and the Middle East. She joined the
Washington bureau of the Times in 1977, and in 1983 was the
first woman to be named chief of the Times bureau in Cairo. In
1990 she was a special correspondent in the Persian Gulf
crisis. Before joining the Times, worked on National Public
Radio and a contributor to The Progressive, a monthly magazine.
Ms. Miller, we appreciate your coming in today. You look so
much better than when I last saw you.
Ms. Miller. So do you, Senator.
Chairman Specter. People say that I am looking better now
that I am growing hair. But you look much, much better than
anybody does. So thank you for joining us, and we are very much
interested in what you have to say.
STATEMENT OF JUDITH MILLER, INVESTIGATIVE REPORTER AND SENIOR
WRITER, THE NEW YORK TIMES, NEW YORK, NEW YORK
Ms. Miller. Good morning. I am Judith Miller, a reporter
for the New York Times. That statement, in and of itself, is
extraordinary. Reporters don't usually testify at Congressional
hearings, but the circumstances that in July forced me to spend
85 days in the Alexandria Detention Center in Virginia
highlight the urgent need for a Federal shield law to protect
journalists and their sources.
I am here today to urge you to enact the Free Flow of
Information Act so that other journalists will not be forced,
as I was, to go to jail to protect their sources. I am here
because I hope you will agree that an uncoercable press, though
at times irritating, is vital to the perpetuation of the
freedom and democracy we so often take for granted.
Yes, the legal machinations in my case were enormously
complex, but the principle I was defending was fairly
straightforward. Once reporters give a pledge to keep a
source's identity confidential, they must be willing to honor
that pledge and not testify unless the source gives explicit,
personal permission for them to do so and they are able to
protect other confidential courses. Eventually, when the fuss
over my case dies down, I hope journalists and politicians will
begin examining the real issues at stake here, especially the
question of when and under what circumstances a waiver can be
considered voluntary.
Struggling with such a weighty question alone in jail was
hardly ideal. I did the best I could under rather challenging
circumstances. Confidential sources are the life's blood of
journalism. Without them, whether they are in government, large
or small companies, or nonprofit organizations, people like me
would be out of business, as I painfully learned while covering
intelligence estimates of Saddam Hussein's weapons of mass
destruction. We are only as good as our sources. If they are
mistaken, we will be wrong. And a source's confidence that we
will not divulge his identity is crucial to his or her
readiness to come to us with allegations of fraud or abuse or
other wrongdoing, or even a dissenting view about Government
policy or business practices that the American people may need
to know.
I know from my 30 years in national security and
intelligence reporting that confidential sources in this area,
though traditionally the most press-shy and skittish of
contacts, are indispensable to Government accountability and
the people's right to know. I would just point to the two
examples.
In 2000, I relied heavily on such sources in co-writing a
series of articles on al Qaeda, which was openly and doggedly
pursuing nuclear, biological, and chemical weapons. That series
won one of seven Pulitzer Prizes for the New York Times that
year, and it could not have been written without pledges of
confidentiality I gave to officials who were so worried about
al Qaeda--all too presciently, alas--that they were willing to
discuss classified information with me to call attention to how
relatively little time and money were being spent countering
what they considered the gravest of threats to our Nation.
Admittedly, the situation that sent me to jail was not as
clear-cut. It was not the case of a government or corporate
whistleblower, but an all-too-familiar case of Washington
politics. Yet the principle that confidential sources must be
protected must apply in all cases. Indeed, one person's
whistleblower is another person's snitch.
One reason why this bill is so urgently needed is, in the
post-9/11 era, dramatically increased amounts and types of
information are being classified as secret and, hence, are no
longer available for public review. Last year, more documents
were classified secret and top secret than ever before in
American history. In such a climate, confidential sources,
particularly in the national security and intelligence areas,
are indispensable to Government accountability. Journalists are
increasingly being subjected to Federal subpoenas since 9/11,
more than two dozen reporters have now been subpoenaed in the
past 2 years and are in danger of going to jail. If current
trends prevail, the Alexandria Detention Center may have to
open an entire new wing to house reporters.
In conclusion, I would just say that my 85 days in prison
were tempered by the letters I received from friends and
supporters from throughout the world, but many were perplexed
why--and they could not understand why a reporter doing her
job, much less a reporter who had never written an article
about this story, could be imprisoned for keeping her word.
What has been missed in much of the furor over my case,
paraphrasing Paul Levinson, a Fordham University professor, is
that the recent hand-wringing should not prevent us from
recognizing the most enduring truth: Reporters, even flawed
reporters, should not be jailed for protecting even flawed
sources. When the dust clears, I hope that journalists and
newsrooms will be emboldened, not confused or angered, by what
I have done. And I hope that you will ensure that no other
reporter will have to choose between doing her small bit to
protect the First Amendment and her liberty.
Thank you, Senators.
[The prepared statement of Ms. Miller appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Miller.
We now turn to Mr. David Westin, President of ABC News,
under whose leadership ABC received two of broadcast
journalism's highest awards, the Peabody Award and Columbia
University's DuPont Award.
In his career before coming to ABC, he was an attorney with
Wilmer Cutler and Pickering, and served as law clerk to
Associate Justice Lewis Powell. Perhaps he had a hand in the
Branzburg opinion to raise the areas of doubt and confusion. Or
perhaps that was in another era.
Thank you for joining us, Mr. Westin. The floor is yours.
STATEMENT OF DAVID WESTIN, PRESIDENT, ABC NEWS, NEW YORK, NEW
YORK
Mr. Westin. Thank you very much, Mr. Chairman, and thank
you to all the members of the Committee for having me here
today. I must confess at the outset, I didn't work on Branzburg
v. Hayes. It was a few years before I was with Justice Powell.
Chairman Specter. Well, that is too bad. I am sure if you
had, it would have been clearer.
[Laughter.]
Mr. Westin. You flatter me, but I wouldn't want to
criticize my old boss.
In my limited time, I want to make two basic points. As you
say, I have served both as a lawyer--I did have the honor of
clerking for Justice Powell, and then with Wilmer Cutler for
many years--and now I have been in a newsroom for approaching 9
years now. So I have seen both sides of this issue. Today I am
here not as a lawyer. I still have my D.C. Bar card, but I am
not as a lawyer here today. I am really representing the 1,300
men and women of ABC News.
I have seen both sides of it and I recognize there are two
sides to this issue and that it is a very difficult issue. But
I think it is just as important as it is difficult.
The two points I really want to try to make here are,
number one, why I believe that it is really important that this
Committee and Congress do something in this area. As has been
pointed out, Branzburg v. Hayes is back from the early 1970's
now, and we have had some confusion in the Federal law for a
good long time and we have gotten along. So a legitimate
question is, why now? What is different? And the second point
for me to make is to give you some sense of where at least I
think it would make sense for Congress to come out if it chose
to legislate in this area.
On why it makes a difference, let me talk about
confidentiality. Confidentiality is truly important. I have
seen this now in the newsroom in doing our reporting. It
doesn't mean--and I don't want there to be any illusion about
this--it doesn't mean that all of our reporting involves
confidential sources or confidential information. In fact, the
vast majority of the reporting we do doesn't involve pledges of
confidentiality and it doesn't involve sources who even ask to
be kept confidential. But there are some stories and some
information that is important, that we cannot get at without
giving some assurance of confidentiality. And everyone knows
about Deep Throat, those famous cases, but I can tell you just
from ABC News during my tenure there, we have had investigative
reports on everything from wrongdoing at Veterans
Administration hospitals to problems at the FBI crime labs and
a scandal in the State of Illinois involving corruption in
State government. And those stories we really could not have
gotten to without giving some pledge of confidentiality.
Now, as a matter of policy within ABC News, we are careful
with those pledges. We do not just give them out easily. It has
to be a truly important story and we have to believe that it
truly is important to give the pledge of confidentiality in
order to get at that story. But it does come up, and it is
important.
What has changed, and what is different just during my
tenure at ABC News, is that, when I first came in, the real
question was is the information you have right, are we
confident that it is truthful, Number one; and number two, is
it newsworthy? There now is increasingly a third element that
we need to take into account, and that is, even though we
believe it is true and even though we believe it is newsworthy,
are we, are our reporters willing to risk subpoena and coercive
efforts by prosecutors or by civil litigants or Government
litigants in a private capacity, are we willing to risk that
for the story? And that is a further element that has been
inserted now within recent years because, simply, of more of
these cases coming up and more prominent cases coming up.
And please understand, I think Mr. Rosenberg misunderstands
my position, at least. I don't mean this as an indictment of
the Justice Department. I am not saying they are doing anything
wrong. They may be doing exactly right. What I can tell you is,
inside the newsroom this is something we are very, very
conscious of. And so it is keeping some information from the
American people that otherwise we and others would be
reporting.
Number two, what really do I think makes sense, given the
fact that I do recognize there are two sides to this? I think
basically--and I leave the drafting to others--basically I
think what we need is a rule that says prosecutors and others
can get access to this confidential information only when there
is truly a need for it and there truly is no other way to get
it.
Now, a number of factors go into that: The importance of
the offense being investigated, the likelihood that there was
an offense in the first place, national security needs to be
taken into account. There are a variety of factors. But the
question is, is it truly necessary and is it truly the case
that there is no other way to get at it.
And finally--and perhaps this is the biggest issue, because
I think frankly there is a lot of common ground with the
Justice Department. I think there is a lot in the regulation to
be applauded, and the fact that they have it. But they
recognize in the regulation the First Amendment interests here,
implicitly. That is why they have the regulation--even though I
note it doesn't apply outside the Justice Department. It
doesn't apply to SEC and FTC and other subpoenas.
But the real issue is who gets to decide in the end? It is
understandable why prosecutors really believe in what they are
doing and are zealous in pursuing their investigations. And as
a citizen, we all should applaud that. We should want that. At
the same time, there is a legitimate countervailing interest on
the part of a robust media that is uncovering some of these
stories we can't always get at. And in that circumstance, in
the end I trust a court to sort that out. And that is really
the issue. Do the courts ultimately decide that, or should we
leave it to the unfettered discretion of the Justice
Department? And that is why on balance I come out with the need
for a balance to be struck, but in order for us to do our job
at ABC News, I think it is critical that the courts ultimately
strike that balance.
Thank you very much.
[The prepared statement of Mr. Westin appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Westin.
We now turn to Ms. Anne Gordon, managing editor of The
Philadelphia Inquirer, where she has been since 1999. A
graduate of the University of Denver, has worked in the field
of journalism at various locales--the Rocky Mountain Business
Journal, business editor in the Fort Lauderdale Sun Sentinel,
and Denver Post, assignment manager for KCNC, a Denver TV
station, and Sunday editor of the Cleveland Plain Dealer.
Thank you for coming to Washington today, Ms. Gordon. We
look forward to your testimony.
STATEMENT OF ANNE K. GORDON, MANAGING EDITOR, THE PHILADELPHIA
INQUIRER, PHILADELPHIA, PENNSYLVANIA
Ms. Gordon. Thank you.
Mr. Chairman and members of the Committee, thank you for
allowing me to share my experience with you today as I consider
this very important legislation. As a journalist, I work hard
to keep my beliefs out of public life, but you have asked me
here today to speak on behalf of journalism, a profession that
I hold dear and that I believe is bedrock to a free and open
society. But while generations of Americans have added their
voices to those of our founding fathers in support of those who
dare to speak out, there is today renewed conflict among the
Government, the judiciary, and the press. I urge you to put
this conflict to rest.
By passing the Free Flow of Information Act that creates a
Federal shield law, you can protect the press when it exposes
secrets that benefit the public and national security. The
Justice Department has told you that this bill is bad policy.
The implication is that when the press tells its readers, as
The Inquirer recently did, for example, that nearby refineries
are vulnerable to attacks and accidents that could imperil
hundreds of thousands, it is threatening national security. The
threat comes not from inadequate protection of these sites, the
Justice Department would seem to reason, but from the use of
confidential sources to reveal the story.
In fact, not publishing this material threatens national
security. I want The Inquirer to tell its readers that some
chemical plants in our region are properly inspected and
guarded and some are not. I want to tell them which levees pose
a threat to New Orleans. I want to tell them which campaign
donors are profiting from the Iraq war and from contracts to
operate the Philadelphia airport. Some of the information
needed to tell these stories does indeed come from confidential
sources, sources that would not talk, provide documents, or
point the way to change if it were not for the assurances that
they will be protected from reprisals.
The fear of exposure exists at all levels, and from those
involving the Government to those involving industry and even
our most sacred institutions. These are not cases involving
political intrigue in Washington, D.C., but real, daily
examples of wrongdoing exposed because of the promise to
protect a courageous individual who wants to see justice done.
The debate over a Federal shield law has been warped by a cycle
of political leaks in Washington. But the reality is that those
sorts of discussions are a minor part of the larger field of
reporting that uses confidential sources. It is also important
to note that very often the confidential source is merely the
starting point in an investigation. But without the promise at
the onset, the fuller story would never be told.
Last year in the United States, more than two dozen
reporters were subpoenaed or questioned about their
confidential sources in Federal court cases. Six journalists
were jailed or fined for refusing to disclose a source. That
number may seem small, but these actions sent doubt into the
minds and spines of whistleblowers and journalists alike.
Today, 31 States and the District of Columbia provide shield
laws that prohibit journalists from testifying about
confidential sources. Eighteen other states have recognized a
reporters' privilege as a result of judicial decision.
Why, you may ask, does the Federal Government need to get
involved? Quite simply, because State shield laws offer little
help in Federal proceedings. Confidential sources are left
without any protection other than the hope that the journalist
will be willing to violate a court order demanding them to
testify. And having no shield in Federal proceedings undermines
the State shield laws that do exist.
Let me give you an example. The Pennsylvania shield law is
in fact absolute. Confidential sources are protected under all
circumstances. But the lack of Federal shield laws undermines
the right-minded policy of the Pennsylvania legislature. If a
journalist is subpoenaed in a Federal court, even though the
reporting was done in Pennsylvania, the journalist can be
ordered to disclose a confidential source, something that the
legislature has otherwise prohibited. The source is left
knowing that confidentiality is not guaranteed because a
journalist in Federal court may be left with a Hobson's choice
of violating the court order and going to jail, or breaking a
promise.
I know of no case where a disclosure of a confidential
source would have protected the citizens of my State or our
Nation. On the other hand, the disclosure of such source's
identity will jeopardize the public's interest and security
because individuals will be too afraid to bring information to
light.
I should add that the Free Flow of Information Act does not
allow for absolute protection, which is why it has been
supported by major news organizations and the American Bar
Association. It allows for disclosure when in fact it would be
necessary to prevent imminent harm to this Nation's security.
We can all of us, each of us, understand why a promise of
confidentiality is crucial to disclosure. How many of us have
asked a friend for a vow of confidence? Our lawyers are bound
by confidentiality, our rabbis, our ministers, our priests, and
our doctors as well. Whistleblowers need to be given the same
assurances. What is most important here is that wrongdoing is
exposed. When we hear as a Nation about Watergate or the fact
that tobacco worked to make cigarettes more addictive or that
Enron was a financial nightmare, we are hearing about promises
made and kept, about a pact with our forefathers that this
Nation would respect a free press.
I urge you today to pass the Free Flow of Information Act,
pass it so that Americans understand that journalists who
protect their sources are not criminals, pass it because the
lack of clarity at the Federal level undercuts State law.
Thank you.
[The prepared statement of Ms. Gordon appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Gordon.
Our final witness is Mr. Dale Davenport. Been in the
newspaper business for a long time. Started in 1966 as a staff
writer for the Associated Press, then was with the Centre Daily
Times and The Morning Press, and has been with The Patriot-News
in Harrisburg since 1972, starting as a reporter and is now
head of the editorial pages. Mr. Davenport made a special trip
to Washington to see me, to urge these hearings and some
Congressional action some months ago, and in part is a
motivating factor.
Thank you for coming, Mr. Davenport. We look forward to
your testimony.
STATEMENT OF DALE DAVENPORT, EDITORIAL PAGE EDITOR, THE
PATRIOT-NEWS, HARRISBURG, PENNSYLVANIA
Mr. Davenport. Thank you, Mr. Chairman. Senator Feinstein.
In Harrisburg, I think as we speak, there is a trial going
on--it has been going on this month--in the U.S. Middle
District Court, that you may have heard about. Eleven citizens
of the Dover Area School Board in York County, south of
Harrisburg, sued the school board over a policy adopted last
year that directs 9th grade science teachers to tell their
students that life is so complex that it might have been
created by an intelligent designer. The citizens claim that
this policy violates the Establishment Clause of the First
Amendment.
But another clause of that Amendment is also in play here
because, during discovery, counsel for both the plaintiffs and
the defendants in this case subpoenaed two reporters, one for
each of the York newspapers, that covered the meeting at which
this policy was adopted. The plaintiffs wanted the reporters to
verify what happened at the meeting, essentially what they had
written about. The defendants, however, wanted at least one of
the reporters to produce her notes and e-mails, drafts of her
stories, and other unpublished material that they claimed would
show that she was biased.
Now, what her bias, alleged or not, has to do with the
central issue of church and State, I don't know and I can't
answer. But it has taken numerous motions and hearings and in
camera examination by the trial judge and four court orders to
get to where we are today, and that is that the two reporters
are still under subpoena to testify as fact witnesses, if they
are called, essentially just to verify that they wrote the
stories and that they are accurate. Commendably, the trial
judge, Judge John E. Jones III, has prohibited questions about
anything else, including confidential sources.
Now, these lawyers were not seeking the identity of the
confidential sources, but they sought material that might lead
to the identity of sources, confidential or not. If there were
a Federal statute in place that defined conditions and set
strict limits for journalist testimony, then everyone would
know the standards, the judges would not have to rely on case
law to judge the particular circumstances of a case like this.
And it is less likely that reporters would be called to testify
in the first place, which would reverse a disturbing trend in
Pennsylvania of lawyers increasingly calling journalists to
testify.
Journalists ought to be the last resort as witnesses, not
first choice. Not only is being called to testify disrupting,
but it has a chilling effect on the everyday sources who
provide the background or the context for our stories, the glue
that holds our stories together. This Dover story wasn't one
where confidential sources supplied the information for the
stories. The reporters simply covered a public meeting of
public officials. But that is not to say that these reporters
did not have sources who helped them produce the stories who
might not have wanted to be quoted or identified.
When I began my newspaper career 42 years ago as a summer
relief reporter in my hometown paper, a little 10,000-
circulation daily in Central Pennsylvania, I didn't know the
term ``confidential source.'' But I encountered right away
literally dozens of people who gave me information, helped me
get information, who didn't expect and often did not want their
names identified in the paper as the source of that
information. These were clerks in the row offices at the county
courthouse. They were the admitting nurse at the hospital.
Police officers, an ambulance driver, the secretary in the
school board headquarters. Most of these folks were simply
doing their jobs, or thought they were doing their jobs, by
pointing me in the direction of a document or an official
source or confirming some detail of something I had learned
elsewhere.
Throughout my career, I have had more sources of this sort
than I could ever count. And what these folks want is for the
journalists to have all the facts so that the story is
accurate, complete, and fair. Americans know that democracy
depends on being informed. They depend on the media to inform
them, and if they can help to make that happen, they tend to do
it.
All of these people are sources and all of us in the news
business have lots of them. If we had to rely on only official
sources, then we would only have the official line in our
stories and the free press as we know it would not exist.
This brings me to why I think a shield law is so important.
It might keep us out of jail, and that would be a good thing,
but a shield law is not primarily about protecting journalists.
A shield law primarily protects those thousands upon thousands
of ordinary Americans who facilitate the free flow of
information. They are helping journalists get the information
and report the story, often anonymously and often by choice.
I urge you to pass a Federal shield law that protects all
Americans who help to keep this country strong by helping to
keep us all informed.
Thank you, Senators, for the opportunity to testify. I look
forward to your questions.
[The prepared statement of Mr. Davenport appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Davenport.
Ms. Miller, in your testimony you refer to sources as to
information on al Qaeda. Could you elaborate upon that, please?
Ms. Miller. Yes, Senator. I had done a three-part series on
the danger of al Qaeda.
Chairman Specter. When did you do that?
Ms. Miller. In January 2001. And I had worked on it the
year before and I had actually gotten interested in al Qaeda
soon after its creation, and was convinced, based on the
intelligence officials that I was talking to and others with
access to classified information, that al Qaeda was a very
dangerous threat to this country. They believed that, but they
also believed that the then-Clinton administration was not
spending enough money countering this threat and that al Qaeda
didn't have priority. So even though our discussions
potentially involved the disclosure of classified information,
I was able to work with some of them to get information that
ultimately led to this series that talked about al Qaeda as a
network of over 50,000 people around the world who had been
through camps and who were trained and who were intending to
kill Americans.
Chairman Specter. Was your work with these informants and
the specification of confidentiality that they would not be--
the source would not be disclosed, instrumental in your getting
the information?
Ms. Miller. Absolutely. I could not have gotten this
information without those pledges.
Chairman Specter. An over-arching critical issue is the
chilling effect. You talk about more than two dozen subpoenas.
The testimony by the Government was that there have only been
12 in the last 12 years, and we will check that out. Can you
give us any specific illustrations--and I am going to come to
the entire panel on this question--as to what your own
experience has been on people, on reporters who have not done
their job because of the chilling effect of the potential of
what happened to you, Ms. Miller?
Ms. Miller. Well, I would hope that anyone who talked to me
would be assured that I was now willing to protect them. But in
general, I think soon after my experience, my newspaper
published a story about the Cleveland Plain Dealer in which
that newspaper decided not to publish two articles that it had
been working on because it was afraid of the consequences of
probes into confidential sources. And I think that is a very
telling example of the chilling effect. These subpoenas are
extremely disruptive also to newsrooms, and they took me out of
the flow--have taken me out of the flow of news reporting for
well over a year now.
Chairman Specter. Mr. Westin, have you experienced in your
capacity as President of ABC News specific cases where this
chilling effect has impeded the work of your reporters?
Mr. Westin. It certainly, I am sorry to say, is a factor
that we talk about and take into active consideration as part
of the editorial process.
Let me be clear. We get a number of subpoenas, both private
and governmental subpoenas, all the time at ABC News. And the
vast majority of those we work out. We negotiate them out, we
limit them, you know, sometimes we move to quash and they go
away. It is only a fairly rare exception that really comes in
litigation.
But what has happened as a practical matter is, because the
Department of Justice does occupy a leadership position in law
enforcement and the law generally in this country, the fact
that they have pursued some of the very high-profile cases has
sent a message throughout civil litigants' ranks and through
the States about the danger of this. And as a result, as I said
earlier, there are cases now--our reporters still do their job,
I agree with Judith. But there are cases now where, in years
past, we just said if we know the facts are right and we know
this is newsworthy, we will go with the story. Now we have to
ask ourselves a tough question about what sort of situation we
are leading our reporters into, our editors into, and
ultimately our corporation into, and is the story really worth
going through that. There are stories that still remain so
important that they deserve that, but we have to take that into
account in deciding what we will pursue and how hard we will
pursue it.
Chairman Specter. You testified, Mr. Westin, that the
standards ought to be that it is truly needed and no other way
to get the information. Do you think on a balancing test that a
judge would undertake that there ought to be an inquiry into
how important the prosecutor's objectives are, how serious a
matter is involved to warrant the jailing of a reporter?
Mr. Westin. Personally, yes, I do believe that. I believe
that if we are really trying to balance the interests here,
there are investigations, and then there are investigations.
And some go to really vital national interests and things--law
enforcement should certainly be pursued very vigorously. Others
are more marginal. And I think that that is a relevant factor
for a judge to take into account.
Chairman Specter. Ms. Gordon, in your experience have you
seen specific cases where reporters or the newspaper has shied
away from a story because of the fear of a subpoena and
possible incarceration?
Ms. Gordon. Specifically, no, I have not. I don't like to
use the verb ``chill,'' because it implies that there is a
bunch of frozen reporters out there afraid to act. And in fact,
this is a very disturbing trend, but I believe that there is a
great deal of courage and civic calling in what we do that
pushes this issue forward.
Is it disturbing? Absolutely. Are we, as Mr. Westin said,
subpoenaed regularly? Several times a month, and we have the
legal bills to prove it. But the reality of it is this is a
part of how we do our job. Journalists should not be called to
become witnesses for prosecutors. They should not be called to
help prosecutors or other lawyers outside of the criminal
courts to do their work. We are not another arm of Government.
We are something quite distinct and need to be seen as such.
Chairman Specter. Did the jailing of Ms. Miller and the
notoriety attendant to that have an impact on your reporters at
the newspaper?
Ms. Gordon. Absolutely. It certainly is the subject of much
discussion. It has also emboldened our outside people who would
like to get information from the newspaper to threaten us, to
suggest that they will take us to court, to suggest that they
will get a subpoena. So it has very much heightened the sense
that confidentiality is something that can be breached. Which
is exactly why we need a Federal shield law, because the
message that is generally out there is that there is no sense
of confidentiality, that what you tell someone in Pennsylvania,
for instance, with a full shield law, is of no importance, it
will not stand the test of confidentiality if it is in a
Federal court, a civil case or a special prosecutor.
Chairman Specter. I am going to have to interrupt for about
2 minutes to take a call. So if you will bear with me, I will
be right back.
[Pause.]
Chairman Specter. Let us resume, and I won't keep you too
much longer. It has been a long morning.
Ms. Gordon, you were in the middle of an answer. Have you
finished?
Ms. Gordon. Yes, Senator, I have. Thank you.
Chairman Specter. Okay. So who is the confidential source,
Mr. Davenport, in that trial? Darwin?
[Laughter.]
Mr. Davenport. It is one of those guys.
Chairman Specter. Have you had, beyond the case which you
have just described, situations where there has been a problem,
where there has been an apprehension on the part of the paper
or reporters about going forward with a hard-hitting
investigation?
Mr. Davenport. I don't think there has been from a
standpoint of perhaps having to protect a source into jail
somewhere. But certainly the increase in the number of
subpoenas that we get--and they are primarily in--once you get
out into Harrisburg and, I think, smaller towns, so often the
questioning is by civil litigants, people in private litigation
seeking to have reporters come into court and verify the
accuracy of a story, and then they start asking questions about
what was left out of the story, how the story was developed.
And these are part of a continuum. And this legislation, this
S. 1419, certainly deals with that in terms of making the
reporter the last-resort witness rather than the first. I think
that is a very troubling aspect of what is going on away from
national security issues.
Chairman Specter. Ms. Miller, one final question, on a
slightly different line. On some of the reports you have been
described as a strong-willed person who is going to move in the
direction which you see. That is a paraphrase and a more
diplomatic context than some of what has been written. The
question I have for you is to what extent is that necessary, as
you see it, to really do your job? You have to shake things up,
be a bull in a china closet to get the kind of results you
want, perhaps disagree with some of your editors to go where
you want to go?
I am going to ask you next, Ms. Gordon, if you agree with
her, so listen.
[Laughter.]
Ms. Miller. Well, thank you, Senator. I think in
investigative reporting of any kind there is a requirement to
be a little pushier than some sources or editors would like. I
have always just pushed as hard as I could to get a story. That
doesn't mean we will always get it right, but without those
qualities I don't think you can be an effective reporter. But
it creates some tensions and enemies, yes. It does.
Chairman Specter. How closely do you have to supervise your
reporters, Ms. Gordon, to make sure that you have seen all
their notes? Do you know their confidential sources, or when a
reporter comes to you with a confidential source, do you not
inquire but ask peripheral questions to satisfy yourself
without going to that core issue?
Ms. Gordon. Well, first of all, Senator, to your earlier
point--
Chairman Specter. If that is an inappropriate question, you
don't have to answer.
Ms. Gordon. Well-behaved women don't change the world. So I
think that that is something to consider.
Second, when there is an important story, am I actively
engaged in knowing what the reporter knows at some level before
publication? Absolutely. I think it is a two-pronged process.
One, confidentiality is not easily given. We work very hard, in
fact, to put names on the record on all of our stories. When
that first initial decision is made, that is not the end of it.
The second phase is basically it goes through editing and a lot
of discussion about whether in fact there will even be
publication. Again, we note here we have spoken much about Ms.
Miller's article that was never published. So it is important
to put that in perspective.
It is a difficult job. It is one that requires a great deal
of internal conversation, questioning, pushing back. Hard
questions are asked, evidence is demanded. Our own bar is very
high, and we would only push that a shield law at the Federal
level also set an equally high bar in asking us to reveal our
sources. And I believe that the act in front of us today does
just that.
Chairman Specter. Mr. Davenport, was the Pennsylvania
shield law ineffective to give your newspaper, the Patriot-
News, a defense for all these subpoenas?
Mr. Davenport. It gives us a defense in State court. But it
doesn't in Federal court, obviously.
Chairman Specter. It doesn't help you when it is in the
Federal court.
Mr. Davenport. Sure. And the Middle District is based right
there in Harrisburg, and so there is quite a bit of activity.
Chairman Specter. Well, we had a question earlier today
about the impact of Branzburg, and the Third Circuit, even
conceded by the Government witness, has the balancing test. But
of course it didn't get to the Third Circuit. But that
obviously would be the law that Judge Jones would apply in the
Middle District.
Mr. Davenport. Yes. His first ruling on this was a 21-page
opinion, the first order involving these two subpoenas, and it
relied on a Branzburg, and there is a case called Riley, I
think, and another one out of the Third Circuit that he used.
But he noted that the Pennsylvania shield law had certain
application, but not in the Federal court.
Chairman Specter. The question arose earlier today, as you
may recall, in my questioning Mr. Rosenberg about whether there
was a split in the circuits. And I don't know how far C-SPAN is
going while we talk. We have had calls in that we were correct
about that, that there is a split in the circuits. We have a
lot of nodding heads out here, a lot of experts in the field.
We have a lot of nodding heads behind me, too.
[Laughter.]
Chairman Specter. When the chairman makes a representation,
it is nice that he is accurate, based on the staff work. And I
am sure all of you feel that same way in your own lines, to
have people give you information which is accurate.
To the extent that you can supplement your testimony with
specific cases where there has been an impact by the threat of
subpoena and the lack of a shield would be very helpful. I
personally am very fact-oriented in where we go on legislation.
And I think it is fair to say my colleagues are, too. We don't
come to these issues with a lot of predispositions. We know the
tremendous value of the investigative reporting and what the
press does, beyond any question. The first thing I do every
morning is go to a whole series of newspapers and electronic
media. And this kind of reference material is invaluable. We
don't have staffs which can do the kind of research which is
done by the news media. We just do not have that. And your
exposure of corruption and mismanagement and malfeasance is
legendary. There is just no doubt about it. And we want to be
sure that you are not harassed.
We have countervailing considerations about being sure that
the criminal law can be enforced and national security
interests are protected, but that is what we are here to do, to
have a balancing test. There is nothing like going to a judge
and having the facts before the judge and the weighing of these
factors and having a judicial decision. This Committee has a
very heavy responsibility. John Jones sat in your chair, Mr.
Davenport, before he was a judge. He was recommended by the
Pennsylvania Senators to be a Federal judge. And we questioned
him here--not as thoroughly as we have questioned you, but we
questioned him. So the independence of the judiciary is very
important and there is rock-bed confidence in what the judges
do. But they have to be able to have a statute to work with.
And I believe we need a statute.
We had a hearing fairly early and, as I say, went to see
Ms. Miller and have followed the matter very, very closely. And
I considered a big part of my preparation for this hearing
today to read both of those pages after the front-page edition.
My wife looked at the two full pages and said, Two full pages?
And then she skipped over to the next page. And I was on the
train later on Sunday, and it took me from Wilmington to
Baltimore to read the whole story.
[Laughter.]
Chairman Specter. But I wanted to be prepared.
Well, thank you all very much for coming in. And to the
extent you can supplement with the specifics, I would
appreciate it. The Committee would appreciate it.
That concludes the hearing.
[Whereupon, at 12:29 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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