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The Free Flow of Classified Information Act

Given his particular set of credentials in national security, it is not a surprise that John McCain understands the critical need for secrecy in the conduct of foreign and military policy.  He has, for example, sharply criticized the New York Times for its December 2005 decision to reveal the National Security Agency’s Terrorist Surveillance Program, the highly classified effort to intercept the international telephone and email communications of al-Qaeda terrorists.  “I understand completely why the government charged with defending our security would want to discourage that from happening and hold the people who disclosed that damaging information accountable for their action,” McCain told an audience in Arlington, Virginia, on April 13.But exactly how is the government to uncover who the disclosers are? One way would be for it to issue a subpoena to the journalists who broke the story and ask them before a grand jury, under pain of a contempt citation, to disgorge the names of their confidential sources. That is precisely what the special prosecutor Patrick Fitzgerald did in issuing a subpoena to Judith Miller of the New York Times as he investigated the leak of the identity of the ostensibly undercover CIA operative Valerie Plame. Miller spent 85 days in jail refusing to comply with the subpoena before she changed her mind and identified Scooter Libby as her source.

A bill now before Congress would exempt journalists from having to testify in such cases. The bill is called the Free Flow of Information Act, but a better name might be the Free Flow of Classified Information Act. By making it almost impossible to apprehend leakers in government, the flow of highly secret information, already substantial, is likely to grow into a flood.  Hillary Clinton and Barack Obama are both supporting this legislation. So, also, is — of all people — John McCain. In addition to criticizing it sharply–he has called it “a license to do harm, perhaps serious harm,” he has also performed a pirouette to praise it as “a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction.”

McCain’s effort to have it both ways is either evidence of serious intellectual confusion or shabby political calculation. For its part, the New York Times is insisting that without the law, the flow of news will slow and the public’s “right to know” will be seriously impaired.

I have sought to explain some of the problems with this contention in several articles: Why Journalists Are Not Above the LawA License to Leak and Not Every Leak is Fit To Print. Whatever one makes of my conclusions, the assertion by the Times that the news will dry up without a shield law is a ridiculous position for a newspaper that is currently in the process of slashing its staff by a hundred editors and reporters. Unless its newsroom is currently populated by a forest of deadwood, those cuts will limit its ability to report the news far more than the purely hypothetical loss of stories caused by the absence of a shield law.


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