[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
SHIELDING SOURCES: SAFEGUARDING THE PUBLIC'S RIGHT TO KNOW
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON HEALTHCARE,
BENEFITS, AND ADMINISTRATIVE RULES
AND THE
SUBCOMMITTEE ON
INTERGOVERNMENTAL AFFAIRS
OF THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
JULY 24, 2018
__________
Serial No. 115-98
__________
Printed for the use of the Committee on Oversight and Government Reform
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
http://oversight.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
31-424 PDF WASHINGTON : 2018
Committee on Oversight and Government Reform
Trey Gowdy, South Carolina, Chairman
John J. Duncan, Jr., Tennessee Elijah E. Cummings, Maryland,
Darrell E. Issa, California Ranking Minority Member
Jim Jordan, Ohio Carolyn B. Maloney, New York
Mark Sanford, South Carolina Eleanor Holmes Norton, District of
Justin Amash, Michigan Columbia
Paul A. Gosar, Arizona Wm. Lacy Clay, Missouri
Scott DesJarlais, Tennessee Stephen F. Lynch, Massachusetts
Virginia Foxx, North Carolina Jim Cooper, Tennessee
Thomas Massie, Kentucky Gerald E. Connolly, Virginia
Mark Meadows, North Carolina Robin L. Kelly, Illinois
Ron DeSantis, Florida Brenda L. Lawrence, Michigan
Dennis A. Ross, Florida Bonnie Watson Coleman, New Jersey
Mark Walker, North Carolina Raja Krishnamoorthi, Illinois
Rod Blum, Iowa Jamie Raskin, Maryland
Jody B. Hice, Georgia Jimmy Gomez, Maryland
Steve Russell, Oklahoma Peter Welch, Vermont
Glenn Grothman, Wisconsin Matt Cartwright, Pennsylvania
Will Hurd, Texas Mark DeSaulnier, California
Gary J. Palmer, Alabama Stacey E. Plaskett, Virgin Islands
James Comer, Kentucky John P. Sarbanes, Maryland
Paul Mitchell, Michigan
Greg Gianforte, Montana
Michael Cloud, Texas
Sheria Clarke, Staff Director
William McKenna, General Counsel
Sarah Vance, Healthcare, Benefits, and Administrative Rules
Subcommittee Staff Director
Sharon Casey, Deputy Chief Clerk
David Rapallo, Minority Staff Director
Subcommittee on Healthcare, Benefits, and Administrative Rules
Jim Jordan, Ohio, Chairman
Mark Walker, North Carolina, Vice Raja Krishnamoorthi, Illinois,
Chair Ranking Minority Member
Darrell E. Issa, California Jim Cooper, Tennessee
Mark Sanford, South Carolina Eleanor Holmes Norton, District of
Scott DesJarlais, Tennessee Columbia
Mark Meadows, North Carolina Robin L. Kelly, Illinois
Glenn Grothman, Wisconsin Bonnie Watson Coleman, New Jersey
Paul Mitchell, Michigan Stacey E. Plaskett, Virgin Islands
------
Subcommittee on Intergovernmental Affairs
Gary Palmer, Alabama, Chairman
Glenn Grothman, Wisconsin, Vice Jamie Raskin, Maryland, Ranking
Chair Minority Member
John J. Duncan, Jr., Tennessee Mark DeSaulnier, California
Virginia Foxx, North Carolina Matt Cartwright, Pennsylvania
Thomas Massie, Kentucky Wm. Lacy Clay, Missouri
Mark Walker, North Carolina Vacancy
Mark Sanford, South Carolina
C O N T E N T S
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Page
Hearing held on July 24, 2018.................................... 1
WITNESSES
Mr. Lee Levine, Senior Counsel, Ballad Spahr, LLP
Oral Statement............................................... 7
Written Statement............................................ 10
Ms. Sharyl Attkisson, Investigative Correspondent, Full Measure
Oral Statement............................................... 28
Written Statement............................................ 30
Mr. Rick Blum, Policy Director, Reporters' Committee for Freedom
of the Press
Oral Statement............................................... 33
Written Statement............................................ 35
SHIELDING SOURCES: SAFEGUARDING THE PUBLIC'S RIGHT TO KNOW
----------
Tuesday, July 24, 2018
House of Representatives,
Subcommittee on Health Care, Benefits and
Administrative Rules, joint with the Subcommittee
on Intergovernmental Affairs,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittee met, pursuant to call, at 2:45 p.m., in
Room 2154, Rayburn House Office Building, Hon. Jim Jordan
[chairman of the subcommittee] presiding.
Present: Representatives Jordan, Palmer, Walker, Grothman,
Meadows, Krishnamoorthi, Raskin, DeSaulnier, and Norton.
Mr. Jordan. The subcommittees will come to order. We
welcome our guests today, we will introduce you here in a few
minutes. You know how this works. You typically got to listen
to politicians talk first. It is crazy the way we do things
here.
But we'll have some opening statements from the chairman of
the respective subcommittees and the ranking members and we
will get right to your testimony. We'll swear you in and then
of course get to the questions on this important important
subject matter that's been in the news of late.
And this is an ongoing series of hearing we're doing on
First Amendment liberties and protecting those first
amendments, whether on college campuses, whether it's from the
pulpit in some of our churches or whether it's now today about
the freedom of the press. So again, we thank you for being here
and we'll start with our opening statements
When the--Jefferson once said when the people fear the
government there is tyranny, when governments fear the people
there is liberty. And I would like to kind of offer that as a
context for evaluating this issue today as we move through it,
this important hearing.
Critical freedom of the press is pursuit of truth without
government entanglements or intimidation, yet we have seen
previous administrations wiretapping journalist phones and
issuing subpoenas for the identity of their sources. For this
reason we signed on to, my good friend professor Raskin's Free
Flow of Information Act which limits the government in
compelling a journalist to reveal his or her sources.
Professor Raskin and I may not agree often, but we are both
committed to reaffirming our First Amendment freedoms,
especially the guarantee, government cannot intimidate or
sensor the town crier, be it the chief contributor to The New
York Times or a freelancer in the Fourth District of Ohio. But
it should come as no surprise that advocate for government
having the least consequential impact on American's lives,
especially at the Federal level where politicized prosecutors
are unaccountable to the electorate.
The creation of the Federal shield law like H.R. 4382, is
the reassurance for journalists and Americans alike that their
government cannot stifle the flow of information. This
legislation acts as a powerful antidote to government
encroachment for placing a more stringent check on their
investigative powers.
And those that improperly release classified information
that jeopardizes national security and public safety should of
course be prosecuted, but we cannot look the other way while
our government intimidates journalists and tries to get their
confidential sources. We need to keep the focus on that issue.
Yesterday committee staff were briefed by the Justice
Department related to their internal policies for obtaining
information from reporters, this was in response to a briefing
request from Chairman Gowdy and fellow cosponsor of the Free
Flow of Information Act, Congressman Meadows.
I, along with members of the committee, on both sides of
the aisle, aim to continue our Justice Department to live up to
the ideals set forth in the First Amendment. And I want to
thank Professor Raskin again for his leadership on such an
important legislative effort. And I'm glad to be working
together in a bipartisan manner on this piece of legislation.
I will just further add, you think about what we witnessed
in the last few years where you had the agency with the power
and influence that it has over American's lives, the Internal
Revenue Service systemically and for a sustained period of time
target people for their political beliefs. And then you see
what's taken place recently, what we've recently learned, at
the Department of Justice and the FBI relative to the previous
campaign and what was taken to the FISA court. This is serious.
And then when you add to it what we saw just a couple
months ago with the reporter from The New York Times who had
everything grabbed by the government. This is a serious issue,
that's why we have the discussion in the hearing today and it's
why we have our witnesses and that's why I am pleased to be
working with my colleagues in a bipartisan fashion. And with
that I would yield to the gentleman from Maryland for his
comments.
Mr. Raskin. Mr. Chairman, thank you very much for your
leadership on this crucial legislation and for calling this
hearing today.
My dad wrote shortly before his death in 2017 these words,
democracy in its operating principle the rule of law require a
ground to stand on and that ground is the truth. The Founders
of American democracy were obsessed with giving the American
people the means to acquire the truth. Madison said the people
who need to be their own governors must arm themselves with the
power that knowledge brings.
Jefferson identified the central role of the press in
preserving democracy. He said, the only security of all is in a
free press so the First Amendment established a preferred place
for freedom of the press since it established a preferred place
for freedom of speech and freedom of religion.
The Supreme Court has held that government can reasonably
accommodate religious free exercise and worship, which is why
Federal law can exempt Native American Indians using peyote for
sacramental purposes when it bans it generally. It is why
public schools can create exemptions for students and employees
who observe religious holidays on official school days while
not releasing other students and employees.
These laws are not constitutionally necessary, but the
courts have found them to be constitutionally permissible as a
reasonable accommodation of religious liberty which occupies a
high place in our pantheon of constitutional values.
While the right of free press occupies a similarly exalted
perch in our constitutional hierarchy. In theory, the specific
command in the First Amendment that Congress will make no law
of bridging the freedom of press was unnecessary, because press
freedom already covered under freedom of speech. But the
Framers insisted upon protecting the distinctive and
indispensable role that the press plays as a free institution
in our Democratic society.
Not everyone can go to congressional hearings, not everyone
can go to State and legislative sessions where city or county
council meetings go late into the night, not everyone can
travel into war zones in Iraq, or Afghanistan, or Vietnam to
determine the realty and the meaning of our foreign policies.
Not everyone can personally uncover torture at Abu Ghraib,
or Guantanamo Bay, or obtain the Pentagon papers, or break the
Watergate scandal, or determine how much oil leaked from the BP
oil spill in the Gulf of Mexico. Or figure out what the
President and President Putin talked about in their secret
meeting in Helsinki. But as citizens we are all equally
implicated by these events and we are all equally invested in
ascertaining the truth of what is happening in our name as
citizens. This is why we need professional journalists and
newspapers to get the information for us.
The First Amendment protects the free press, but that
abstract guarantee means nothing if reporters cannot protect
confidential sources and whistleblowers or if they have to live
in fear of criminal prosecution and jail time. When reporters
cannot do their jobs our ability to function as a reflective
democracy suffers, the free press is not the enemy of the
people, it is the people's best friend. And it is the enemy of
tyrants everywhere.
Jefferson said were it left to me to decide whether we
should have a government without newspapers or newspapers
without a government, he said I would not hesitate a moment to
choose the latter.
As in other times of sharp political division, like the
period of the Alien and Sedition Acts of 1798 the press in
America is under ferocious attack today. Reporters are berated
and castigated daily. Journalists have been arrested, punched,
attacked and even murdered, including in my home State of
Maryland simply for doing their jobs.
We cannot afford as a society that reporters attacked or
intimidated or fearful. We cannot have them afraid that they
will be thrown into jail just for doing their jobs. Congress
must defend actively the free press and the American public's
right to know what exactly the government is doing you in our
name. It is time to pass a Federal shield law to protect the
press whose work is essential to democracy.
America favors shield laws to protect the media watchdogs.
Only 49 States and the District of Columbia have passed shield
laws or adopted some sort of reporter's privilege. What more
evidence do we need that the American people want to see a free
and aggressive press to expose corruption and safeguard the
workings of democracy.
Mr. Chairman you and I introduced the Free Flow of
Information Act of 2017 last November after Attorney General
Sessions, in testimony before the House Judiciary Committee,
refused to commit not to jail journalists for doing their jobs.
I approached you on the spot and asked you whether you would
introduce this measure with me, and I will never forget your
immediate and enthusiastic response. It has given me hope that
we can indeed come together as citizens, and lovers of the
Constitution across party lines to defend the basic
institutions of our democracy.
Throughout our history dozens of journalists have served or
have been threatened with jail time for protecting their
sources, one of these journalists I know quite well, Brian
Karem who is one of my constituents and the current Montgomery
County Sentinel executive editor. In 1990, and 1991, Brian went
to jail four different times to protect confidential sources
while working as a TV reporter. The last time he went to jail
for nearly 2 weeks while the Supreme Court considered his case
and was only spared a long sentence when his confidential
source, once she had moved from Texas to California and no
longer feared for her life, came forward and revealed her own
identity.
Confidential sources like this are essential not only in
investigative journalism, whether these sources shed light on
government abuse and corruption, as was the case with
Watergate, the Pentagon Papers or the abuse of detainees at Abu
Ghraib in Iraq, but also in routine news gathered and the daily
reporting of local news stories that immediately and directly
influenced the lives of our people.
The Free Flow of Information Act is long overdue, but there
could be no better time to pass it than now, a time of peril to
the republic, a time of corruption when foreign governments our
trying to subvert our elections and when the basic values of
society are in danger.
Mr. Chairman this exact same Federal shield legislation
passed the House with overwhelming bipartisan support in 2007
and the bill was championed by none other then Congressman, now
Vice President Mike Pence. It provides covered reporters with
the qualified privilege and contains exceptions for compelled
disclosure resource. Whenever national security is threatened
or when there is a threat of eminent bodily harm or death and
in other discrete and limited situations. It would not cover
reporters who are suspected of committing a crime themselves
nor would it give reporters the right to interfere with law
enforcement working to solve a crime.
This is an area I think where we can all come together
across party lines to defend the basic pillars of American
democracy. I agree very strongly with Vice President Pence who
said it's not a Democratic or Republican issue, it's an issue
for all Americans. And I urge my colleagues to support it.
Mr. Chairman, I yield back and I thank you again for your
leadership.
Mr. Jordan. You bet. It looks like we have got some
students who are leaving. We want to thank you all for being
here. Thank you so much.
Mr. Raskin. It takes a professor to drive them out of the
room.
Mr. Jordan. It wasn't the professor, it was the nine pages
in your speech. No, it was all good. It was all good
The gentleman from Alabama, of the subcommittee chair is
recognized.
Mr. Palmer. Thank you, Mr. Chairman. An inform citizenry is
the hallmark American representative democracy. And without the
free flow of information, we fail to hold those in power
accountable.
At the core of American exceptionalism is the liberty
granted to its people to scrutinize its own government as first
witnessed by Thomas Paine in Common Sense. I want to thank
Chairman Jordan for joining with the Intergovernmental Affairs
subcommittee on holding this hearing today. Our subcommittees
have held a series of First Amendment hearings examining how
certain rights like the right to speak freely at college
campuses must be protected and reaffirmed.
The American press has the freedom report on matters of
importance to the public without fear of recourse from the
government. Yet over several administrations the Justice
Department has wielded tactics like threatening subpoenas and
even imprisonment in an attempt to compel journalists to reveal
their confidential sources, while these tactics may be used in
good faith, investigation of criminal matters, it does
demonstrate why a Federal shield law is critical.
The Supreme Court addressed the freedom of the press in a
seminal 1970 case Branzburg v. Hayes, in this case the justice
rights said Congress has freedom to determine whether a
statutory newsman's privilege is necessary and desirable and
the fashion standards and rules as narrow or broad as they
deemed necessary.
Meanwhile, in the absence of Federal shield law, States
have rolled out their own. As chairman of the Intergovernmental
Affairs subcommittee, I see the necessity of States detail laws
and practices to fit the unique needs of their citizenry, but
the emerging patchwork of State laws and Federal circuit Court
have left journalists unsure of their protections from the
Federal Government and sends a chilling effect throughout the
press.
A Federal shield law like H.R. 4382 will further empower
journalists to pursue the truth and hold the government
accountable. As Ranking Member Raskin pointed out, this is not
the first time that a law like this has been introduced. It was
introduced by then Representative Mike Pence, but also by Ted
Poe, and now jointly by Chairman Jordan and Ranking Member
Raskin.
I want to thank my friend Chairman Jordan and my friend
ranking member professor Raskin for their leadership in this
effort. And I yield back.
Mr. Jordan. I thank the gentleman. The gentleman from
Illinois is recognized. I got to spend some time with you in
Ohio over the 4th of July. Did a great job at the event with
Doctors from an Indian American heritage.
Mr. Krishnamoorthi is recognized.
Mr. Krishnamoorthi. Thank you. Thank you, Mr. Chairman.
Thank you, Chairman Palmer, thank you Ranking Member Raskin for
your leadership on this issue and thank you to our witnesses
for coming in today.
A free and flourishing press is a cornerstone of our
democracy. Our Founding Fathers understood the importance of an
independent press and that's why they embedded this particular
right within the First Amendment to the Constitution. A free
press informs the public and holds leaders to account. I know
because I get a lot of letters based on what was written in the
newspaper about me and so I know firsthand that the free press
holds us to account.
In order for the press to truly be free however, reporters
must be able to protect their sources, whether they are
government whistleblowers or corporate insiders. This crucial
ability to protect confidential sources has been eroding over
the past several years. As our government has sought to crack
down on leaks, more and more reporters have been pressured to
reveal their sources. The current administration is no
exception to that trend. In fact, last August Attorney General
Sessions announced that the Department of Justice had tripled,
had tripled the number of active leak investigations saying,
and I quote, ``This culture of leaking must stop.'' There is no
question that classified or other legally protected information
must be properly handled. But our government should not
prosecute the journalists who expose corporate and government
wrongdoing with the information that whistleblowers bring them.
Although almost all States have shield laws, they vary in scope
and do not apply in Federal cases where courts have issued
conflicting rulings. That is why a Federal shield bill is so
important.
Vice President Pence, as mentioned before, sponsored such a
bill in 2007 which passed the House with broad bipartisan
support. I'm glad that Representatives Raskin and Jordan have
introduced a shield bill this Congress and I hope it will be
given full consideration. But we have a lot of work do.
In the world press freedom index the United States ranked
itself at 45th in the world. According to Reporters Without
Borders which compiles this particular index our President
Trump has fostered further decline in journalists right to
report. He has called the press, quote unquote, ``the enemy of
the American people,'' and labeled unfavorable coverage, quote
unquote ``fake news.'' He has also called for revoking
broadcasting licenses of certain mainstream news outlets.
President Trump has expressed hostility to a free press, but
undermining legitimate journalism is dangerous. It makes us
less informed and erodes our trust in government. It wears away
the fabric of our society. That is why I'm glad we are holding
this hearing. We must work together on a bipartisan basis to
strengthen our commitment to a robust free press.
Thank you, Mr. Chairman.
Mr. Jordan. I thank the gentleman. I am now pleased to
introduce our witnesses. We have first Mr. Lee Levine, senior
counsel at Ballard Spahr, and secondly we have Ms. Sharyl
Attkisson, investigative correspondent and host of Full
Measure, someone who's story I'm familiar with, what Ms.
Attkisson went through. And I'm sure you're going to tell us
about that, it's simply unbelievable. And then of course we
have Mr. Rick Blum, policy director of the Reporters' Committee
for Freedom of the Press.
Welcome to all of you. What we normally do in this
committee is we swear you in. So if you will please stand up
and raise your right-hand.
Do you solemnly swear or affirm the testimony you are about
to give is the truth, the whole truth and nothing but the truth
so help you God?
Let the record show each witness answered in the
affirmative. And we're going to move right down the aisle. Mr.
Levine you go first and then Sharyl and then Mr. Blum.
WITNESS STATEMENTS
STATEMENT OF LEE LEVINE
Mr. Levine. Thank you, Mr. Chairman and members of the
subcommittees.
I last appeared before a committee of this House 11 years
ago. The topic was the Free Flow of Information Act of 2007,
which has been mentioned was cosponsored by now Vice President
Mike Pence. It passed this chamber with overwhelming bipartisan
support, but never received a vote in the Senate. My message to
you today is a simple one, the time has come to enact just such
legislation codifying a reporter's privilege in the Federal
courts.
You should do so based on the unassailable historical fact
that confidential sources are often essential to the press's
ability to inform the American people about matters of vital
public concern. While there is, as there should be, healthy
ongoing debate within with the journalism profession about the
appropriate use of confidential sources. All sides of that
debate agree that they are at times essential to effective news
reporting.
As then Congressman Pence testified before the House
Judiciary Committee in 2007 and I quote, ``compelling reporters
to testify and in particular compelling them to reveal the
identity of their confidential sources is a detriment to the
public interest.''
Indeed for almost 3 decades following the Supreme Court's
1972 decision in Branzburg v. Hayes, subpoenas issued by
Federal court seeing disclosure of journalist's confidential
sources were rare. Since that time however, the situation has
changed dramatically. In the last 15 years, a period that spans
three separate Presidential administrations, a substantial
number of subpoenas seeking the identities of confidential
sources have been issued by Federal courts to a variety of
media organizations, the journalists they employ and the third
parties that provide them with telephone and email services.
In my 2007 testimony, I described in some detail the
significant increase in the number of such subpoenas in the
immediately preceding years. Unfortunately, since that
testimony the drum beat has continued unabated. In 2008 for
example the Department of Justice issued the first of what
became multiple grand jury and trial subpoenas to Pulitzer
Prize winning journalist James Risen, seeking to compel his
testimony in the criminal prosecution of former CIA employee
Jeffrey Sterling.
Two separate Presidential administrations pursued Mr.
Risen's testimony over a period of 5 years. Ultimately, the
United States Court of Appeals held that there is no reporters
privilege in criminal cases in the Federal courts of fourth
circuit and that Mr. Risen was therefore obliged to testify.
Significantly following the fourth circuit's ruling and Mr.
Risen's ongoing refusal to betray his promises to his sources,
the Justice Department decided not to call him to testify at
Mr. Sterling's trial. Nevertheless, even without Mr. Risen's
testimony, Mr. Sterling was convicted. Which makes you question
how necessary Mr. Risen's testimony was in the first place.
In 2013 the Justice Department seized 2 months worth of
phone records connected to more than 20 telephone lines in the
Associated Press' offices and journalists, including their home
phones and their cell phones. It did so not by seeking such
information directly from the AP or the journalists involved,
but rather by issuing without their knowledge subpoenas to
their telephone service providers. That same year in the course
of a criminal investigation of alleged leaks involving North
Korea the Department secured warrants authorizing prosecutors
to monitor the phone calls and emails of Fox News correspondent
James Rosen, again without his knowledge.
The public outcry that resulted from the AP subpoena and
the Rosen search warrant prompted the Department to revise
substantially its internal guidelines governing the use of such
compulsory process. Nevertheless, the practices apparently
continued, despite the change in the administrations in the
interim.
Earlier this year the Justice Department revealed that it
had secretly procured years worth of phone and evil mail
records of New York times reporter. It remains unclear whether
the Department complied with its own guidelines when it did so,
although that is largely an academic question since most courts
have held that the guidelines are not judicially enforceable in
any event.
Things were not always this way. In the almost 3 decades
immediately following the Supreme Court's decision in
Branzburg, both the Federal courts and DOJ largely construed
that precedent to provide to journalists a privilege grounded
either in First Amendment or in Federal common law that
protected them in most Federal court proceedings, civil and
criminal. In recent years however, that judicial consensus has
broken down.
As I've noted, Mr. Risen was authoritatively informed by
the fourth circuit that he had no lawful ability to protect the
identities of his confidential sources in response to a
subpoena issued by a Federal court sitting in Virginia. But if
that same subpoena had been issue by a Federal court in
Delaware, less than 120 miles to the north, he would have
enjoyed a privilege grounded in Federal common law as construed
by the third circuit. And if the subpoena had been issued by a
Federal court in Georgia, some 300 miles to the south, he would
have been protected by a First Amendment base privilege
recognized in the 11th circuit.
Make no mistake, the drum beat of subpoenas, coupled with
the lack of clear guidance concerning the recognition and scope
of a reporter's privilege in the Federal courts has impaired
the ability of the American people to receive information about
the operations of their government and the state of world in
which we live.
I respectfully submit that the time has long since time for
congressional action. Thank you.
[Prepared statement of Mr. Levine follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Jordan. Thank you, Mr. Levine, that was good, good
history. We appreciate that.
Ms. Attkisson, you're recognized for your 5 minutes.
STATEMENT OF SHARYL ATTKISSON
Ms. Attkisson. Thank you. Thank you for inviting me. I
remember a few years ago reporting on a story at CBS news and I
always asked our lawyers there to vet my stories for fairness
and legality. And on this particular day, I was going over some
documents with them, provided by an inside source exposed
corporate wrongdoing. I had vetted the documents and gotten
other sources to appear on camera for a story.
The attorneys wanted to know if we're challenged in court
on this story, can we disclose the insider's name? I said, no.
He would lose his job. It would ruin him. Why? They explained
that the law had been changing and it was not to the benefit of
journalists or our sources. They told me that we can no longer
guarantee protection of the identity of our sensitive sources
if challenged in court by say the company we were doing the
story about. You'd have to give up the name my lawyers told me.
Or else what? I said. You'd probably go to prison. That made
getting truthful information that is in the public's interest
that much harder. I could no longer promise people who were
willing to expose corporate or government wrongdoing that I
could protect their identities at all costs.
Obviously, I'm just one reporter, but you can multiply my
experience by so many others. Here are just a couple of
examples of stories I covered over the years that might not get
told today because sources feel threatened.
My investigation into fraud inside the Red Cross after all
the 9/11 donations, which was recognized with an Investigative
Emmy award, was possible only with assistance from inside
sources who provided me with audits and information. Stories
exposing wrongdoing with Ford and Firestone and covering up
long known deadly tire dangers, another Emmy nominated
investigation might have gone untold. Same with my
investigations into Enron, Halliburton, prescription drugs and
countless others, stories that arguably let to lives saved and
taxpayer money saved.
It was with help from inside intelligence sources that I
broke the story at CBS of the Chinese stealing our most
sensitive nuclear secrets. I was also able to break the news
that the FBI lied about evidence in that case against their
suspect Wen Ho Lee. They claimed he had failed a lie detector
test when I was able to get the polygraph and show that he had
actually passed with flying colors.
Without the ability to protect confidential sources, I
probably wouldn't have been able to report that the CDC was
alarming our Nation with a swine flu epidemic, but the vast
majority of cases blamed on swine flu were not swine flu or any
sort of flu at all. And I wouldn't have been able to break the
stories about how BP and the government provided false
information about how much oil was really leaking into the
ocean after the BP oil spill.
In the past decade we've see the government attack sources
with a zeal that should be applied to those committing the
wrongdoing exposed. Instead, the wrongdoers are often
protected. In some cases, they are the ones prosecuting the
whistleblowers.
The greatest offense a government insider can commit today
is not for example improperly unmasking names of U.S. citizens
for political purposes. It is providing information of
wrongdoing to a journalist. Someone could go to jail over the
so-called leak, but not the actual wrongdoing exposed. And
sadly, we now have ample evidence that bad actors in government
will go to shocking extremes, violating constitutional rights
and possibly laws to hunt down our sources.
In my case, I'm still litigating against the FBI and others
connected to the intel community for their intrusions into my
computers when I was at CBS news. The honest intel connected
sources who helped me discover this include former FBI unit
chief. The actions of the computer intruders, which we can
trace forensically, imply that they were desperate to learn who
my sources are and what I might be about to report. Talk about
chilling. After that information became public, everyone one
from intelligence community sources to corporate whistleblowers
have told me that they hesitate to communicate with me because
they believe I'm being monitored.
And nothing has happened to the computer intruders to this
day. Instead, the Justice Department simply uses unlimited
taxpayer money to fight my case in court. And the big picture I
can't help but see this is part of a growing and organized
effort to control a free press. I'm concerned about new
movements to force schools to teach media literacy and to
invite third parties to curate our information and determine
what's fakes news and what's true.
My research shows that these efforts are often the opposite
of what they seem. The forces behind them may be trying to
actually shape public opinion by preventing us from seeing
certain facts and views. If these trends weren't effected in
the past, we might not know that cigarettes are bad for you.
The whistleblower wouldn't talk, the studies would be varied by
algorithms at Google and Facebook because curators and media
literacy experts would declare the research to be
conspiratorial. They'd point to settled science to prove
cigarettes are perfectly safe, maybe even good for you. News
outlets and reporters daring the pierce the narrative would be
controversialized, bullied on social media and forced out of
their jobs.
Make no mistake the ongoing government and corporate
crackdown on whistleblowers and journalists who report their
stories is a war. Our truthful information threatens the
persistent bureaucracy and powers that be like nothing else and
they are increasingly desperate to control information and
narratives. We can only guess what important stories in the
public interest will never be told because of a less free
press.
[Prepared statement of Ms. Attkisson follows:]
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Mr. Jordan. Thank you. Very good as well.
STATEMENT OF RICK BLUM
Mr. Blum. Thank you, Mr. Chairman. Thank you, Chairman
Jordan, Chairman Palmer, Ranking Member Krishnamoorthi and
Ranking Member Raskin, thank you for holding the hearing and
for the opportunity to testify today. And thank you as well to
you for your leadership on the issue, especially the
constituents of Mr. Raskin, I appreciate you working on this.
Today I am testifying in my capacity as policy director for
the Reporters' Committee for Freedom of the Press which has
existed for almost 5 decades and subpoenas is something that
we've been working on for a very long time. And on behalf of
News Media for Open Government, a coalition of news media
associations.
I want to highlight three points. First, confidential
sources are vital to keeping citizens informed about our
communities as well as about national stories that impact us
and our lives and I will mention a few examples.
Second conflicts continue as Mr. Levine mentioned over
subpoenas and other demands for information obtained during the
news gathering process, including the identities of sources.
And third, the Free Flow of Information Act is a
commonsense approach that sets that clear legal standards
recognizing that the need to protect sources can coexist with
the government's responsibility to protect human life and
enforce the law. And as you've heard confidential sources are
essential to an informed public and accountable government.
Journalists prefer to attach identities to their sources
and a story. There are times however when to bring a story to
the public, sources must be protected, even though in many
cases the source's identity is known to the reporter. When
checked with multiple sources, authenticated and vetted for
accuracy. Information for unnamed sources has been critical for
journalists to keep the public informed about problems facing
veterans, who are trying to obtain medical care, police
misconduct, investigations into suspected fraud and the policy
choices facing Presidents in the face of global challenges.
Coverage of the current administration is no different in that
respect.
Many subpoenas and other demands for journalists' notes and
sources relate to news gathering on topics that have nothing do
with national security. An unnamed source is critical to get
getting to the truth about the 2014 shooting of Laquan McDonald
in Chicago. One reporter, Jamie Kalvan, used a confidential
source, a witness, to corroborate that the official police
accounting of the shooting did not match what the autopsy
showed. His reporting led to an investigation into the police
officer's conduct, the release of a video of the shooting, a
murder charge against one of the police officers in an effort
to compel Mr. Kalvan's testimony to identify his source. Kalvan
benefitted from legal and institutional support, including from
my attorney colleagues at the reporter's committee which
enabled him to successfully fight to quash the subpoena. He was
fortunate.
In another now infamous example, the startup company
Theranos gained widespread attention for its claims of a
breakthrough in testing blood using only a few drops of blood
at a fraction of the cost of traditional methods. When
reporters dug into the story, they discovered sources who knew
the company could not back up its claims with scientific
evidence. That reporting unraveled the story and led to fraud
changes against the company's founder.
No topic of news coverage is immune to demands for
journalist sources and material. From my witness observation of
an execution in Alabama, to interviews with individuals who
occupied a Federal wildlife refuge in Oregon a few years ago,
and I'll add an investigation into steroid use in baseball.
A Federal shield law wide would protect a wide range of
news coverage. The Free Flow of Information Act provides a
qualified, as you've heard, but not absolute privilege that
sets strong standards for courts to follow when deciding
whether to compel a journalist to reveal his source.
In media--so I want to make one other point, media lawyers
I have spoken with tell me that, in the 49 States that
recognize a journalist's source privilege, something
interesting happens. Even the existence of the shield law goes
a long way to avoid have unnecessary litigation.
So to conclude, Chairman Jordan and Chairman Palmer,
enacting the Free Flow of Information Act would strengthen the
independence for the press and the sources upon which the
public relies to be fully informed on a daily basis.
Thank you for the chance to testify and I look forward to
your questions.
[Prepared statement of Mr. Blum follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Jordan. You bet.
The gentleman from Alabama is recognized for 5 minutes of
questioning.
Mr. Palmer. Thank you, Mr. Chairman.
Mr. Levine, what does it mean for journalists to have
qualified privileges?
Mr. Levine. Well, there are two important words there, one
is qualified and one is privilege. Privilege means that at
least presumptively they will not have to disclose the identity
of their confidential sources or published information that
they chose for journalistic reasons not to publish in response
to compulsory process like a subpoena.
The qualified part means that that is not absolute. So that
this bill and I think most reasonable people recognize that
there have to be narrowly drawn exceptions to that, like--are
set forth in this bill with respect to terrorism or eminent
threats to national security. I think one of the geniuses of
this bill is that it really does articulate very well those
limited exceptions and articulates how limited they are and
need to be.
Mr. Palmer. Well, I thank you for that answer, because it
lead into what I was going to come to next, because a lot of
people are going to be concerned about whether or not we go to
such great lengths to protect the confidentiality between a
journalist and their source, even to the extent that we might
not get information to defend us against an attack or that
might compromise our national security. But even with a law
that we have here or the bill that we have here, that's not an
issue. Would you agree with that?
Mr. Levine. I do agree with that. And in fact, the
exceptions to the application of the privilege, that is the
issue--the instances in which the qualified privilege would
yield are taken almost verbatim from the Department of
Justice's own guidelines, as the Department has itself
purported to govern itself by over the last 40, 50 years. The
only difference here is that the decisions the Department's
made will now be reviewable a court instead of being undertaken
in their unbridled discretion.
Mr. Palmer. Ms. Attkisson, you have broken--you've been
involved in some major stories Fast and Furious, Benghazi.
Obviously, your ability to report on those, to conduct your own
investigations have been greatly enhanced by being able to
protect confidential sources. But in your testimony, you said
that your activities were being monitored. Am I correct? Is
that how you said that?
Ms. Attkisson. Yes.
Mr. Palmer. Okay. Can you elaborate on that, you know, how
you were being monitored, you believe you were being wiretapped
or that there were other intrusive methods that were being
utilized?
Ms. Attkisson. According to our forensics reports.
Mr. Palmer. Would you hit your mic, please.
Ms. Attkisson. According to our forensics reports and we
have four separate independent reports that give similar pieces
of the puzzle. There was a long-term effort to monitor my
computers and phone devices, both my personal computers and my
CBS computers.
Mr. Palmer. So how would they monitor them without a
warrant?
Ms. Attkisson. Well, we don't know that they didn't have a
warrant, although I have two sources tell me that there was no
FISA warrant. So the way I'm told that sometimes works they
identify someone in the orbit of the person they want to watch
and then they capture you on incidental surveillance, meaning
they pretend it was sort of an accident, and then they kind of
reverse engineer it so they can actually get the information
from the person who was really target that they didn't think
they can get a warrant from.
So as we've conducted our investigations forensically,
there have been a lot of questions about who I might have
contacted in foreign countries which would create a pretext or
a pretense to make it look as though someone needed to be
watched on that end, which would then sweep up my
communications as well.
Mr. Palmer. All right. I just wondered if you had filed a
Freedom of Information Act request on that to try to determine
the extent of the intrusive----
Ms. Attkisson. Yes, sir. The FBI has repeatedly denied my
Freedom of Information Act request or not fulfilled them
properly claiming they do not have information they provably do
have. And there's, as you may know from your previous FOIA
work, very little that can be done about that.
Mr. Palmer. Mr. Blum, I don't want you to feel left out in
the questions from the gentleman from Alabama, one of things
I'm looking at are all of States that have basically a
patchwork of laws that cover this. And one of things that I was
wondering about is you can be in one State and be covered, and
be in another State and not be covered, you might be an out-of-
state journalists and not be covered by any State law. Can you
elaborate on that, please?
Mr. Blum. Well I think as Mr. Levine mentioned, depending
on which court you're fighting the subpoena you may get a
different result. We also have the First Amendment, but at the
current state of affairs you may be in Alabama and you may be
able to successfully fight a request for a murder suspect to
want to interview you about the kind of interviews you've done.
The problem with that is you are also going to be cross
examined, so a reporter doesn't want to be put in a position of
providing all their notes, but it is true that it is very much
a patchwork.
Mr. Palmer. I generally am not for extending Federal power.
But I think this when it comes to constitutional issues and I
really think this is an area where the Federal Government does
have a legitimate need to intervene. And again, I want to thank
Ranking Member Raskin and Chairman Jordan for their work on
this. I think this is important work.
And with that, Mr. Chairman, I yield back.
Mr. Jordan. I thank the gentleman. The gentleman from
Maryland is recognized.
Mr. Raskin. Thank you, Mr. Chairman and thanks to Chairman
Palmer for his excellent questions there. So I just want to ask
some questions to help illuminate exactly what our bill is
going to do.
Mr. Levine, let me start with you. If we adopt a press
shield bill like this, and the reporter were walking down the
street and saw a crime, would they owe the sovereign their
testimony or would they be able to get out of it because of the
reporter shield bill?
Ms. Levine. There is a provision in the bill that deals
with eyewitness observations of criminal conduct differently
than the normal source reporter relationship.
Mr. Raskin. Okay.
Ms. Levine. There are still some hoops to jump through but
as a rule a request for testimony of eyewitness observation of
a crime other than a crime that would be committed by giving
information to a journalist.
Mr. Raskin. Exactly. But the point is that as long as they
are not operating in their professional capacity as a
journalist, they would be able to testify about criminal
activity they witnessed like everybody else and would be
required to.
Ms. Levine. That's true too, because the definition of a
covered person only applies to people who are engaged in the
process of doing their jobs as----
Mr. Raskin. Okay. Ms. Attkisson, let me get to you. A lot
of people seem to think that investigative journalism only
rarely depends on anonymous sources and it's only investigative
journalism, it's not other types. And I wonder if you could
shed some light on this for us. How important are confidential
sources to the work of journalists?
Ms. Attkisson. Yes, sir. In my case and I've done both
kinds of reporting extensively, even when we are not using in a
finished story anonymous sources are confidential sources, they
are often the genesis of the story. We may find other people on
the record to confirm, and be the voices, and the face of a
story after somebody who is confidential flagged us to the
story or maybe flagged us to some original information.
So in my experience in both kinds of reportings it is
absolutely critical to be able to speak to people and have them
believe that they are not going to be--their identity is not
going to be revealed.
Mr. Raskin. Great. Mr. Blum, let me come to you. Is there
anything illegitimate about people speaking on and off the
record or a deep background basis for reporters. I confess, I
think I've done that myself certainly as a State Senator, I
don't know if I've ever done it in Congress. Is anonymous
speech protected under our constitution?
Mr. Blum. Anonymous speech is protected and often times
there is great utility in having a conversation with a source
about, because they can give you some background--they can give
you--here's what's really happening, you know, you may not--I
don't want my name attached to it because if it gets out, then
I'm going to get in trouble with my supervisor, but you learn a
lot of detail that you wouldn't otherwise know about what's
really happening.
It is also very useful for journalists, if they have a
story they are going to go to an agency. This happened with
national security stories, to say here is he a story, here's
what we have. Let us know, we'd like to see if you have any
national security concerns about reporting and they might
change a word, they might delay the story for a day, but there
are those conversations and it is important that they be done.
Mr. Raskin. Great. All of us grow up with the wisdom of the
Founding Fathers about the importance of the press as a
watchdog and the importance of the sunlight that the media
brings as a disinfectant to potential corruption in government.
But beyond those things that we learn in school, I wonder if
any of you or all of you would care to share a contemporary
example of a place where you think the press has played a
really important role and confidential sources have been
critical to the ability of the press to inform the public of
something that it needs to know about.
Ms. Attkisson. I gave quite a few examples, including the
BP oil spill, I don't know if that's contemporary anymore.
Mr. Raskin. Yeah. But, well what exactly happened in that
one?
Ms. Attkisson. Well, when I was asked to cover that story
for CBS news, it was several weeks into it the story and there
had not been a lot of news under us, so they felt that I needed
to dig into that. And one of first things I asked was where was
the video, because I realized intuitively there was probably a
video, an undersea camera.
And with the help actually of Senator Markey and actually
then Representative Markey and Senator Nelson and another
Senator whose name I can't remember, we worked together with
FOIA and pressure to get the government who had these tapes but
didn't want to release them to release them. But it was only
from the help from some inside sources connected to the
government that I was able to with some precision report that
the flow as reported by the government and its experts and by
BP was false by a factor that was incredibly wildly wrong.
Mr. Raskin. They underestimated? Or understated?
Ms. Attkisson. By far, by far. And I couldn't have had the
confidence to report that. I did have on-camera sources that do
that sort of thing that did confirm it, but I couldn't have
reported that story. And that was a major story. Ultimately I
believe that was part of the criminal fraud conviction against
BP was then misleading the public on the size of the spill and
the flow.
Mr. Raskin. Thank you. I yield back, Mr. Chairman.
Mr. Jordan. I thank the gentleman. The gentleman from North
Carolina, Mr. Meadows is recognized.
Mr. Meadows. Thank you, Mr. Chairman. And I want to thank
both of you for working in a bipartisan way on this particular
piece of legislation. And my recommendation is is that we get
together in a bipartisan way and use a little leverage to make
sure that it gets a vote on the floor of the House. And so I'm
sure there are a few critical pieces of legislation. If you Mr.
Jordan and you Mr. Raskin are willing to join forces, I think
we can probably----
Mr. Jordan. I'm always willing to join forces with the
gentleman from North Carolina.
Mr. Meadows. I thank the gentleman.
Ms. Attkisson, let me come to you because I'm troubled.
What you're saying is the FBI or DOJ or some entity actually
surveilled your computer records and phone records, but
specifically your computer records, and you had that
forensically looked into and they with a high degree of
confidence suggested there had been intrusion. Is that correct?
Ms. Attkisson. Yes, sir. There is no doubt about that from
what the forensics people say who know a lot more about this
than I do and have worked in the intelligence agencies in some
in some cases. There is an actual fingerprint on the software
that is used for this that they recognize themselves or that
can be recognized. It is very unique, it is a government
proprietary software.
And not only that, they didn't just look at my computer
records, according to forensics, they planted three classified
documents in my computer, they had a keystroke monitoring
program in there. They used Skype which was on my computer to
secretly activate it to exfiltrate files and listen in on
audio. People probably don't know that Skype--actually, I
didn't know Skype could be used for that. So there are a lt of
techniques they use and that they can use and access remotely
to do this sort of thing.
And I don't believe I was unique in terms of the only
journalist this happened to. I was just one who found out about
it because I had Intel sources.
Mr. Meadows. So how has that affected your reporting since
that time. Since you found that out do you take different
precautions? Do you not report on certain things? How has that
affected you?
Ms. Attkisson. It's definitely affected some of the stories
I get. I can tell you I've had a Senator who wouldn't answer is
direct question to me on the phone after that and I was asking
him why and he said, Sharyl, your phone is bugged. You know,
people once they've heard that, they are less likely to talk to
me about sensitive topics, as well as sources inside government
corporations.
A lot of people still will talk surprisingly because they
assume that they are being monitored anyway, if they are sort
of a government insider. It has made a difference. And I do
tell people cause I ask the question can I protect their
identity or would it ever be necessary to be revealed. And when
I tell them I would protect it as best that I could, but that I
may have to if sued by an entity or charged with something. And
it has definitely chased away at least several stories and
sources that I know of.
Mr. Meadows. So you mentioned a lawsuit earlier and you
said with the unlimited budget of the Federal Government, they
continue to I guess obstruct any settlement on this particular
issue. Can you share with this committee--here's my concern, a
free press that has been articulated so eloquently by some on
the minority side of this aisle is shared by both the majority
and minority and it should be.
And yet, if you're trying to fight back and there is no
accountability with regards to what was done to you, we've got
an issue. And we should have an issue in a bipartisan way to
say at that particular point you were working for CBS, so they
are not normally associated with perhaps the broad brush that's
painted for MSNBC or Fox or any--they are seen as a down-the-
road mainstream media network. So why--tell me about your
lawsuit and where you are with that, if you can.
Ms. Attkisson. The lawsuit's been going on over 3 years.
And I have a wonderful attorney who's been helping me
tirelessly. If I were him I would be tired by now, because the
Department of Justice under Trump has been no different than
the Department of Justice under Obama for this purpose. And
instead of trying to find out after looking at our forensics
which are undeniable who might have been responsible for this,
they simply litigate and try to get the case dismissed and
protect us--protect themselves from having discovery.
And suddenly maybe 5, 6 weeks ago after 3 years of us
surviving things like sovereign immunity, the judge dismissed
the case, which we have now appealed to the fourth circuit and
my attorney hopes to take it to the Supreme Court. Not that we
will necessarily win because as he said, the facts are on our
side but the law is not. Government officials are well
protected for duties that they commit as government workers.
I would argue that when it comes to constitutional
violations of the press and the public that that falls outside
of what should be protected, but it's up to the courts to
decide. And I might mention, a case that was not--had anything
to do with me in 2017, but impacted my case, the finding as
legal analyst examined it said that Congress needed to pass a
law to make government officials beholden or responsible for
actions like what they did to me, that it was a law that was
needed. I don't know how something like that becomes generated
and I'm doubtful that that can get going just from knowing how
things work.
Mr. Meadows. I thank you. I yield back, Mr. Chairman.
Mr. Jordan. I Thank the gentleman. The gentleman from
Illinois is recognized for 5 minutes.
Mr. Krishnamoorthi. Thank you, Mr. Chairman.
You know we can't hold a hearing about the importance of
the freedom of the press without acknowledging what the Trump
administration is doing with regard to the fourth estate. They
have been highly critical of journalists. Just as an example,
President Trump has singled out, mocked, and vilified reporters
covering his campaign and his administration. He threatened to
cancel the broadcast licenses of news organizations. He has
labeled any unfavorable coverage, of which there is no
shortage, fake news.
He has called journalists, quote, and this is a direct
quote, the enemy of the people. He even Tweeted a video clip of
himself tackling and individual with a super imposed CNN on to
the ground. Now some people might dismiss these as jokes or
empty gestures, but I want to hear your opinion on what this
has done, if anything, to journalists and their ability to
cover the news or to report from confidential sources and so
forth.
Mr. Blum, your organization represents the legal interest
of journalists. How has President Trump's attitude towards the
press effected journalists able to cover his administration?
Mr. Blum. You know, I would say, you know, journalists have
thick skin. I don't know what they are doing in journalism
schools, but journalists are ready to be criticized for their
stories. And much of what this President does is no different
from what other Presidents have done in terms of wanting to
shape a story, wanting to get better coverage in the future.
But a lot of what this President does goes well beyond that.
And it's a lot harder for a journalist in a local community to
go write a story if their audience or the people they want to
talk to about the story don't believe that they are going to
get a fair shake in the story.
And I think the biggest concern that we have is that the
public is going to have a much harder time knowing what's
accurate and what's not and what's true and happening with
current events in their communities and what's not. And I think
that rises above partisanship and I think that this bill is a
way to strengthen the ability of journalists to tell important
stories and it is critical that we do more to protect
journalists and protect the flow of information to the public.
Mr. Krishnamoorthi. What did you mean when you say he's
gone beyond, what other Presidents have done? Can you elaborate
on that?
Mr. Blum. Sure. I think it is a very strong contrast
between Presidents who will traditionally remind the public and
remind ourselves about the vital role that our press plays,
about the constitutional securities, that or the places that
the Constitution has for free press. This President does not do
that and tries at every turn to remind the public or to tell
the public not to believe things like that. And I don't think
that that's just a game and I don't think it just has short-
term benefits. I think it could be over the long-term of great
concern.
Mr. Krishnamoorthi. It has been reported to us that some
folks feel that they have been physically assaulted in part
because of a culture that's developed against the press. Can
you talk a little bit about that?
Mr. Blum. Sure. Our organization works with a couple of
other organizations including the committee to protect
journalists and a few others to track press freedom. And one of
the things they look at is physical assaults. And the most
dangerous place that they found for a reporter is at a protest.
That's the place where physical assaults happen. And so
obviously, there's things that we advise our reporters to do to
take care, to work together, to know where you are to protect
oneself.
But it's a very big concern when journalists are out there
doing their jobs reporting in the field and they may be subject
to some kind of physical attack. We don't know whether the
rhetoric has anything to do with any particular event, but it
sure doesn't help.
Mr. Krishnamoorthi. And how does this have an impact, if at
all, on how governments in other countries treat journalists?
Mr. Blum. I think it is very clear that other countries who
are looking to the United States for leadership in our
principles and pur visions that we have traditionally espoused
and that we hold dear. Other countries that may be--dictators
in other places may be more emboldened to crack down on their
own press and to crack down on their own citizenry. And I think
that that is very real danger that we have.
We hosted a number of journalists throughout the Americas
to come to the United States because they were concerned with
press freedoms in the United States, it was the first time that
the Inter American Press Association came to the United States.
They have visited other countries where press freedom is
endangered. And I think in their--for them to witness and talk
with some of the folks on Capitol Hill and elsewhere,
journalists, they are concerned, they are concerned about the
impact back home.
Mr. Krishnamoorthi. Thank you.
Mr. Jordan. Mr. Blum, do journalists ever get it wrong?
Mr. Blum. Sure. And they like to correct the record.
Mr. Jordan. Do journalists have a bias?
Mr. Blum. In the general sense I would say the bias is for
the truth.
Mr. Jordan. Well, that's accurate too. But there's been all
kinds of examinations, all kinds of studies, all kinds of
surveys, all kinds of polling which indicate that they have a
bias. And so what I'm asking is if journalists get it wrong and
they have a bias, is it--should journalists be immune when they
get wrong from any type of criticism?
Mr. Blum. Absolutely not, certainly not.
Mr. Jordan. I just wanted to be clear because this shield
law is about protecting journalist sources. It is not about
protecting journalists who get it wrong and maybe display a
bias, from criticism that may in fact be appropriate. Is that
accurate?
Mr. Blum. I would 100 percent agree with that, journalists
are open to being criticized for getting things wrong, for
getting things wrong in stories. If it's inaccurate, they
should correct it and the industry is very committed to that
kind of accountability, and this goes beyond that.
Mr. Jordan. That's important.
All right. The gentleman from Wisconsin is recognized.
Mr. Grothman. Thank you. That wasn't exactly on point, but
I'll just make a point for you.
I love journalists. Always feel I have a good relationship
with journalists in Wisconsin. I think I still do.
Our country right now is, of course, divided, as it usually
is. You know, about one-half of the people voting for the
Republican candidate, about one-half the Democrat candidate
every 2 years.
And one would think given that, if you cover the average
newsroom or the faculty of the average journalism school, you
got about the same in the last election, about one-half voting
for Donald Trump and one-half voting for Hillary Clinton.
Insofar as the total number of journalism professors, say,
wavered from that 50/50 rule, I think you're going to get
distrust in the media. And that's unfortunate. I don't know why
it shouldn't be 50/50. But, you know, it's something for you to
think about. It's obviously not the purpose of the topic here
today. But I think there's a general public perception that
something less than 50 percent of the journalism professors in
our schools voted for Donald Trump last year.
And I'll give you some question. If it is,you know, you can
say it's a problem or not, but I'd argue, you know, it
shouldn't wonder from that 50/50 divide that much.
A couple questions for you. I'm going to focus here a
little bit about university newspapers, because sometimes they
break a surprising number of important stories.
Do State shield laws afford student journalists the same
protections as traditional journalists? For anyone of the three
of you.
Mr. Levine. It varies depending on the State and the
definition of who's covered under the particular statute. Some
States define who a journalist is by reference to whether they
get a paycheck and whether it's a full-time job, or something
like that, and others are more general. So it would vary from
State to State.
Mr. Grothman. Do you think it should matter?
Mr. Levine. My own view is that, especially college
journalists are entitled to the full protections of what I
understand the First Amendment to mean, which includes a
protection for confidential sources.
Mr. Grothman. Okay. Next question. Let me give you three
different students, and you can tell me whether they should be
treated differently under the law.
You have one student who is writing for his local student
newspaper. You have another student who is maybe interning or
somehow writing for a national news organization. And another
student forms his own newspaper, kind of a, you know, opinion
blog or a print page.
Do you think those three students should be treated
differently at all?
Mr. Levine. I do not think they should be treated
differently.
Mr. Grothman. Ms. Attkisson.
Ms. Attkisson. I'm sorry, sir. I don't have an opinion. I
haven't looked into that or--I can't give a thoughtful opinion
about that.
Mr. Grothman. Mr. Blum.
Mr. Blum. I agree with Mr. Levine. They should not be
treated differently.
Mr. Grothman. Okay. Well, we'll give you a--following up on
that. Let's say I'm writing for a student newspaper, and I
write a story on Greek life. And in that story I talk--give an
anonymous source saying that such-and-such incident of hazing
happened or such-and-such drinking under age 21 happened, and
that I've been told this by members of a fraternity or
sorority.
Should that student be protected if they try to reveal his
source for these things?
Mr. Levine. I hate to ask you for more details, but----
Mr. Grothman. Okay.
Mr. Levine. For what kind of lawsuit are they being
subpoenaed?
Mr. Grothman. One of the newspapers say--I went to the
University of Wisconsin in Madison. The Badger Herald was the
newspaper. If they write an article saying pro or con on Greek
life, and say I was talking to a prominent member of the Greek
community last weekend who told me about drinking at a football
game, or told me about hazing, both of which could be illegal,
should that journalist be forced to reveal his sources for
these stories.
Mr. Levine. It's hard for me to envision a lawsuit in which
a subpoena would be issued for that testimony. But if there
was, it's also hard for me to conceive of a situation in which
there wouldn't be ample alternative sources for the kind of
information that the person----
Mr. Grothman. Right. Well, let's say the university itself
brings in the reporter and says, Hey, we thought there was no
hazing going on at these frats. You said there is. Tell us,
what do you know.
Do you think they should be able to compel them to give
that information or not?
Mr. Levine. Under those circumstances, no, largely because
there would be ample alternative sources for the university to
go to and investigate on its own whether or not there's hazing
at fraternities.
Mr. Grothman. And once we get done making these journalism
schools have, say, at least 30/70 ratios, people voted for
Trump and Hillary, should the journalism students be educated
on their protections under the shield laws?
Mr. Levine. Absolutely. I think most journalism schools in
this country do have media law courses where journalists do
learn about their legal rights and responsibilities.
Mr. Grothman. Thank you very much.
Mr. Jordan. I thank the gentleman.
Mr. Levine, earlier you were asked about the qualified
privilege. Do you think we've got it right in this bill, hit
the right balance on protecting this fundamental liberty and
yet have the exceptions that may be needed in case of national
security or terrorist threat or that sort of thing?
Mr. Levine. I do. And I commend the committee. I mean, this
obviously was the same bill that was introduced back in 2007,
but I thought it had it right then, and I think it has it right
now.
Mr. Jordan. And would our other two witnesses? Ms.
Attkisson and Mr. Blum, would you agree we've hit it pretty
good.
Ms. Attkisson. I would defer to the opinions of the experts
who can read bills and make more legal sense of them and so
on----
Mr. Jordan. Would you agree, Mr. Blum?
Mr. Blum. I would. It's a very strong bill.
Mr. Jordan. Let me ask you where the previous gentleman was
from Wisconsin talking about college campuses. We've had a
hearing here on some of the shenanigans going on on college
campuses. And I pose the question to one of the professors
there. This is more in a broader, just First Amendment Free
speech rights. I asked the question: Are you familiar with the
safe spaces and free speech zones, some of these things going
on on college campuses?
Mr. Levine, are you familiar with all of this?
Mr. Levine. Yes.
Mr. Jordan. So I just asked the question, can a safe and a
free speech zone be in the same location?
Mr. Levine. I think that's an enigma wrapped in conundrum,
or something like that.
Mr. Jordan. But isn't that sort of the point?
Mr. Levine. Yes. Absolutely.
Mr. Jordan. Yeah. And you--I think you would agree that,
yes, they should be, could be, and are supposed to be under the
First Amendment; is that right?
Mr. Levine. Absolutely.
Mr. Jordan. Yeah.
And, Ms. Attkisson, you would agree with that as well?
Ms. Attkisson. Yes, sir.
Mr. Jordan. And Mr. Blum?
Mr. Blum. That's an easy one. Yes.
Mr. Jordan. Yeah. Because, I mean, I remember asking.
And should you be able to say things on--I asked--literally
asked one professor this. Professor Raskin, I think you might
remember this. Asked a professor: In a safe space on a college
campus, could you make this statement, Donald Trump is
President. And do you know what the guy said? He started his
answer by saying, It depends.
Think about that. That is scary. So this is why we are so
focused on this First Amendment, not just the shield law for
the press. But, I mean, this is--when the government comes
after you--I'm going to ask Ms. Attkisson to tell more of the
details of her story, because I want to know, frankly, how you
found out, what made you first suspect that the government was
spying on you. I think that's a pretty important question as
well. But I've got a host of things, and I'm going to let Mr.
Raskin kind of finish up here.
But, Ms. Attkisson, let's go to that question, because this
scares me. Literally, this is why we've done so many hearings.
When pastors in the pulpit are saying you got to be careful
what you say, it'll jeopardize your tax exempt status. When
students are saying on campus, You can't say certain things
that are fact, like who the President of the United States is,
you can't say that in certain safe spaces on campus. And now
when we find out maybe--or not maybe, but we find out a
journalist was being spied on, this is scary stuff.
So, Ms. Attkisson, tell me how you first figured out the
government was watching you.
Ms. Attkisson. Well, sir, I never suspected that because it
sounds so wildly crazy.
Mr. Jordan. No. It sounds crazy for me to even say it here,
but----
Ms. Attkisson. And this was before Edward Snowden, and
Associated Press, and James Risen, and Jim Rosen. So it sounded
even stranger. But I was actually approached by two different
people who I don't think know each other in the intelligence
community who flagged me that they thought I might be
surveilled because of practices that they saw or became aware
of in the intelligence agency they used to be, they said,
strictly forbidden or controlled that were now being done more
liberally.
Mr. Jordan. So you had a confidential inside source come to
you and say----
Ms. Attkisson. Yes, sir.
Mr. Jordan. --we think this is going on. And not just going
on in general but going on with you personally.
Ms. Attkisson. Yes, sir.
Mr. Jordan. Okay.
Ms. Attkisson. And then through--with help of another
confidential source and a former FBI unit chief who helped
connect me, we were able to get the first forensics exam. And
they were literally blown away, according to them, when they
saw this evidence, that they were so shocked, because there was
a time when this would never have been done, they said.
Mr. Jordan. I want to be clear. The people who did the
forensic exam were people--background in government who know
what they're looking for; is that right?
Ms. Attkisson. We've had many forensic exams, but that
first one, I can't say who it is, and you can't make me.
Mr. Jordan. I understand. We wouldn't want to make you.
Ms. Attkisson. But it's a government-connected person who
knows exactly what government surveillance software does and
looks like. The proprietary software and flagged it and
identified it with very----
Mr. Jordan. So not to sound too Black Helicopter here, but
was this software installed on your computer remotely, or do
you think someone actually broke into your home or your office
or both?
Ms. Attkisson. This went on for a long time, but we were
able to forensically look at instances of remote intrusions. We
have dates, times, and seconds, and methods. For example, they
used something called a BGAN satellite terminal, one time at
least. They also used a hotmail email account, a friendly
email, attached something to it that downloaded in the
background when I clicked on something that day.
Mr. Jordan. You've presented all this material to a court,
and they've dismissed the case?
Ms. Attkisson. We never got so far as to present all of it.
We presented some overviews. And it was considered, at the
time, plausible. And we survived many motions to dismiss along
the way.
But after we added a telephone company to the lawsuit a
few--couple months back, there was new considerations and the
case was dismissed.
Mr. Jordan. Okay. I've got a few more things but okay.
Ms. Attkisson. Yes sir. But I would say anybody who wants
to look at some of these forensics, especially at the
Department of Justice, for the sake of trying to find who did
it or identify for their own purposes, because I think they
should be concerned, and I don't think I was the only one, I
think they really ought to be on that, personally.
Mr. Jordan. Yeah. Well, we're trying to get all kind of
information from the Department of Justice, and we find it
extremely difficult.
Let me ask you about the--one of the catalysts for this
hearing. And I think for Mr. Raskin and I, he and I have been
working on this legislation. This is Ali Watkins, the reporter
for the New York Times and what happened to her.
So, Mr. Levine, can you tell me--give me your thoughts on
that situation, just in a general sense.
Mr. Levine. Well, as I said in my testimony, Mr. Chairman,
I do not know whether the Justice Department followed its own
guidelines when it procured her records. It doesn't seem to me,
from what I've read in the press, that it's likely that they
did. I could be wrong about that. But if they didn't, that's a
serious concern, because they have guidelines that they're
supposed to be following.
If they did follow them, I have a hard time understanding,
given what I know has been reported in the popular press about
the nature of the investigation that led to the indictment that
is now a criminal prosecution, that the guidelines were
complied with substantively. That is that there was enough of a
substantive case that could have been made to authorize the
seizure of her records.
But I'm hesitant to really opine on that, because I don't
know the facts.
Mr. Jordan. No. I understand.
Mr. Blum.
Mr. Blum. I think for us the reporters organization also,
you know, looking at what they did. We are concerned, you know,
the media organizations were concerned about the breadth of
information that was taken, the delayed notice to her. And
those are the kinds of things that, overtime, we're going to
want to understand. How did the guidelines apply and were they
applied fairly.
And we have worked on other cases, on other issues, to
unseal court records of how leak investigations work so that we
have a better public record--the public has a better
understanding of how this works. And that's what we'll be doing
in this case as well. And that's what we're--we're involved in
the news media dialogue working with the Justice Department on
that. And through that we're hoping that, overtime, we'll have
a better understanding of whether the guidelines were really
followed or not.
Mr. Jordan. Yeah. Thank you.
Let me just finish with one last question. In her opening
statement, Ms. Attkisson used the word chilling. The chilling
impact that not having a shield law and some of the other
things that we have witnessed in the last few years in this
country relative to the First Amendment, what that has for a
free society for our--I would argue for our country.
So talk to me a little bit about what you're seeing in the
broader context, because I think the term Ms. Attkisson uses is
right on target. I do feel there's a chilling impact. I think
Ms. Attkisson even referenced in one of her answers, she was
talking to--I believe you said a Member of Congress who said I
don't want to answer that question, Sharyl, because your
phone's bugged.
If that's actually going on, that is as chilling as it
gets. So fill me in on that, and then I'll yield the balance of
the committee's time to the gentleman from Maryland.
Mr. Levine. Let's just go down the line.
Mr. Levine. A lot of it is documented in my written
testimony, but there have been multiple examples of journalists
who have gone on the record and said not only that I couldn't
have reported on this story if I couldn't rely on confidential
sources but also that I didn't report on this story because
people were afraid to come forward.
There's a particular example that I cite in my written
testimony about a story in the Cleveland Plain Dealer--or that
would have been in the Cleveland Plain Dealer. But the editor
spiked the story because he was afraid that he wouldn't be able
to protect the identities of the confidential sources.
Mr. Jordan. All right. Ms. Attkisson.
Ms. Attkisson. I would say that I find myself more
concerned not about whether the Justice Department followed the
letter of its own guidelines. But the stuff that they're doing,
to say cynically, that fall outside all guidelines and scrutiny
at all. The secret stuff that they may be doing or politicizing
in tell tools. And I don't blame an administration for this. I
blame what I've come to call myself the persistent bureaucracy,
because I think this happens under the administrations that I
have covered in 24 years, and it seems to tighten up a little
more with each one.
I also would put part of the blame in the lap of the media.
We haven't done a good job at making--clawing back our own
rights when they're taken from and us. And I have some
experience with that. I don't need to go into detail in my job
where we have been challenged but maybe not been as aggressive
as we could have or should have at fighting that, partly
because we're just too busy covering the news to devote a lot
of bandwidth and resources to making sure we retain our rights.
Mr. Jordan. Well said. I mean, what--Lois Lerner wasn't the
person running the IRS. She wasn't confirmed by the Senate.
Doug Shulman was the guy running it. He's not the one who
orchestrated the targeting that took place of innocent
conservative groups across this country.
So you're exactly right. Persistent bureaucracy I think is
a good way to phrase it. She was at that near high level, but
she was in the bureaucracy. Not the one who faces--not the one
who comes in front of the committee until we found out what she
was doing. So I'm very concerned about that. And as you well
say, the things that have happened that we're in the midst of,
and I know Mr. Raskin and I would have some disagreement on,
but things that happened at the FISA court. This is the scary
stuff, and we got to get to the bottom of all this as we're
looking at First Amendment liberties.
Mr. Blum, you get the last word----
Mr. Blum. Say briefly.
You know, journalists and media outlets around the country
are facing enormous and economic pressures. And so if you can
challenge and try to threaten and undermine that economic
stability of the local news outlet with--just by dragging
someone into court trying to get a subpoena for their
information or suing them for libel when you know you don't
have a case, that's troubling. And that provides it.
So the lack of those kind of legal protections like we're
talking about today, really undermining the ability of the
press to report freely and without concern.
Mr. Jordan. I've taken a lot of time here, so I'll let Mr.
Raskin ask a few more questions, if the gentleman has some
Mr. Raskin. Thank you, Mr. Chairman. Thank you. You posed
an interesting question of whether or not a free speech zone
can be a safe space at the same time. And I got to thinking
about it, and I suppose my answer is, yes, because, under the
First Amendment, the whole country's a free speech zone.
Mr. Jordan. Exactly. Exactly.
Mr. Raskin. And it is a safe space in the sense that it's
safe for Democratic discussion and dialogue.
You know, the First Amendment doesn't guarantee that
nobody's feelings are ever going to be hurt or that people
aren't going to be offended or disagree by other people's
thoughts. I remember reading about the great comedian Lenny
Bruce who kept getting arrested for his comedy, which was very
risque at the time. And he used words some people didn't like
and so on.
But somebody said to him--he said he had a right of free
speech. Someone said, Well, not if your speech is offensive.
And he said, My parents came to America in order to be
offensive and not get thrown into jail for it.
And, of course, everybody gets offended by something
different. I tell my students that free speech is like an
apple, and everybody wants to take just one bite out of it. You
know, somebody doesn't like left wing speech, and somebody
doesn't like right wing speech, and somebody doesn't like pro-
monarchical speech and somebody doesn't like anti-monarchical
speech and racist speech and sexist speech and obscene speech
and pornographic speech, and so on. And You take all these
bites and pretty soon there's nothing left of it because
everybody's been able to get rid of the thing that they like
the least.
And so the true test of the First Amendment, of course, is
if we're willing to stand up for even the speech that we abhor,
even the speech that we hate.
Well, 49 States--all the States except for Wyoming, and I
don't know that the issue's come up in Wyoming. But 49 States
have passed press shield laws, exactly the kind that Chairman
Jordan and I are introducing now, or they've simply adopted the
privilege as a matter of judicial interpretation.
Would you guys agree that that's a pretty fair statement of
the sentiments of the American people about this? Would you
agree that the people recognize the critical role that the
press plays, not for the press themselves. People might love or
hate particular media outlets. But the critical role that the
press plays for Democracy. Would you agree that that is a
pretty fair statement of where the public would be on our
legislation?
Mr. Blum.
Mr. Blum. Yes.
Ms. Attkisson. It would seem so, sir.
Mr. Raskin. Yeah.
Mr. Levine.
Mr. Levine. Absolutely. I think that--when I was back here
in 2007, the vice president said that this isn't a pro press
bill. It's a good government bill. And that's really what we're
talking about.
Mr. Raskin. Yeah.
I want to close just by invoking the terrible incident that
just took place in Annapolis, Maryland, where five staffers of
a famed local newspaper were killed by an assailant. And the
community rallied passionately to the support of the newspaper
and the families of the slain. And I think that the whole State
has stood up very strongly for the rights of journalists and
for people who do the often unsung work that local journalists
do.
But they really create and continue a sense of community in
so many of our small towns and small cities across the country.
They don't make a lot of money. People get mad at them. People
send them hate mail and so on. But, really, they are the
lifeblood of American political culture.
And so I hope that the three of you speak for journalists
and media employees across the country in being very vigorous,
in standing up for your rights. You know, people love to kick
around the press at different points. But when you really stand
back and think about it, we would not have much of a democracy
without the work that you reporters do, so I want to thank you
all of you.
And I yield back, Mr. Chairman.
Mr. Jordan. Thank you.
We're set to close, but I'll be happy to give a minute or
two to the gentleman from Alabama if he has some closing
thoughts or a question.
Mr. Palmer. Mr. Chairman, I've never gotten a complaint
about a short hearing, so I yield back.
Mr. Jordan. We want to again thank you all very much. You
were all tremendous. And great opening testimony and good
responses to the questions from the members. And we're going to
keep working see if we can actually get this passed.
Thank you all.
We're adjourned.
[Whereupon, at 4:05 p.m., the subcommittees were
adjourned.]
[all]