[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

                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

46-829 PDF                       WASHINGTON : 2009 

For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
Washington, DC 20402-0001 





























                       COMMITTEE ON THE JUDICIARY

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



























                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

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.]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                 
