Dana Priest is a national-security correspondent for the Washington Post. Her professional success depends in large part on her ability to ferret out secrets from the U.S. intelligence and defense bureaucracy and from knowledgeable officials on Capitol Hill.
Sources within government, acting in violation of the laws governing secrecy, regularly provide her with classified information in exchange for her promise not to disclose their identity, even if this means she must defy a court order and possibly go to jail. Last year, Priest won a major journalism award for a November 2005 article bringing to light the highly classified fact that the CIA had established detention facilities for terrorists in foreign countries.
Because reporters have lately been going to jail with some frequency—the imprisonment of Judith Miller in the Valerie Plame leak investigation is the most famous recent instance, but there have been others—pressure has been building for federal “shield-law” legislation that would exempt reporters from being compelled by courts to disclose their sources.
The idea is that because journalists like Priest now lack such protection, sources hesitate to talk and the public is deprived of valuable news. With a Democratic majority now running the show in Congress, and a number of leading Republicans supporting such a bill, the prospects for the passage of a “reporter’s privilege” are better now than they have been at any time in recent memory.
Earlier this year, I put forward my own analysis of the reporter’s privilege in an article entitled Why Journalists Are Not Above the Law. In June 2006, I also testified about this and related issues before the Senate Judiciary Committee. Also testifying at the same hearing was Matthew W. Friedrich, the Principal Deputy Attorney General. The assembled Senators gave him a number of written questions about his department’s view of the shield-law bill then before Congress.
The Justice Department’s reply to these questions took a long time coming. Only now, a year later, has it been released to the public by the Senate Judiciary Committee. Among its many points, it takes a dramatic position regarding what is now routinely accepted journalistic behavior.
At issue is a loophole in the proposed bill. In cases in which journalists are themselves eyewitnesses to a crime, the shield would not apply. Thus, if Dana Priest found herself in a bank that was being robbed, she, like all other witnesses, would have an obligation to testify before a grand jury about what she heard and saw. She could not, under the proposed shield law, claim exemption, even if she subsequently wrote a news article about the holdup.
But this eyewitness exception itself has an exception in the proposed legislation. If the crime in question involved the unauthorized disclosure of classified government information to a journalist, than the eyewitness exception would not apply, and the journalist’s shield would remain in force.
To this, the Justice Department objects out such a provision “would permit [a] journalist to participate intentionally in violation of the criminal laws of the United States—indeed, as the recipient of the disclosure, to cause the crime to occur—with impunity.” This would put the journalist-source privilege on a completely different plane from other, long-recognized privileges, like the attorney-client privilege, which “does not apply where the attorney participates in crime.”
Surprisingly the position taken by the Justice Department has gone unnoticed by the media—which are not yet up in arms over it. True, the Justice Department has never once brought charges against a journalist for eliciting secrets from government officials (although, as in the ongoing AIPAC case, it has brought them against lobbyists for such conduct). In deference to the First Amendment guarantee of freedom of the press, the department’s strong and longstanding preference, codified in its own voluntarily adopted internal rules, has been to prosecute leakers rather than journalists.
But in this passage the Justice Department has taken a further step. It is stating unequivocally that when journalists like Dana Priest ferret out national-security secrets, even if they do not publish them, they are actively participating in a crime.