The advantage of being a long-time reporter in Washington, D.C., is that you begin to see patterns of behavior both of individual politicians and also of administrations. The pattern of the Bush administration is to use the term "national security" for just about everything that it wants to do under the radar screen that is supposed to be standard issue for a representative democracy. This week was no exception to this pattern.
There were two very different reported events. The first part of the week the New York Times reported that attorneys for detainees in Guantanamo filed complaints that their phone conversations were being wired tapped. Many had wondered over the last few years why the Bush administration did not want to go through the FISA court to obtain warrants for wire tapping. Wonder no more; the administration was wire tapping the attorneys! The FISA court would never have approved those warrants, and the Bushies knew it, so they just went around the law.
In a seemingly unrelated issue, surprisingly, Bush judicial appointee Judge Kavanaugh supported journalist Toni Locy in her right to protect her sources and wondered out loud why Ms. Locy had not been more assertive about the confidentiality of such sources. The case concerned scientist Steven Hatfill. Locy is being asked to reveal all of her sources which number about 30. Locy is currently facing a $5,000 per day fine for not revealing those same sources. The judge has not rendered his final decision.
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Congress, however, has decided that it needs to do something to protect a journalist's right to protect sources. A bipartisan bill that will bolster the "the standard shield law" is being championed by Mike Pence, a well-regarded Republican. If passed, it will protect legitimate press from having to revel their sources. The bill has passed the House by 398 to 21. Fortunately, the 60 votes necessary for cloture in the Senate have stalled any possibility of passage of the bill. Once again, the Bush administration is claiming national security to render the standard shield law obsolete.
The history of the standard shield bill goes back to a 1972 Supreme Court decision when a local court compelled journalist Paul Branzburg to revel his sources to a grand jury on an article he wrote about hashish. The court did not fully protect journalist Branzburg, but it did find that, "news gathering was not without First Amendment protection." However, the Court did not define exactly what that meant. Because of the court's ruling, many states enacted journalist shield laws, and the majority of states have granted some form of protection to journalists.
These state shield laws worked relatively well until the Internet and cable news were invented. Formerly "local" reporters are now national and global thanks to the new media. With the Internet and cable television so much a part of every journalist's life, the state laws are insufficient. Federal protection in these times of national media is necessary. The recent bill passed by the House (HR 2101: The Free Flow of Information Act of 2007), is not overly broad. In fact, many have criticized it for being too narrow in the way it defines journalists as making a financial gain or livelihood. This excludes students and other freelance journalists who may not make much or any money.
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The Bush administration is lobbying against the bill parading the national security phrase when possible. They must be hoping that the public and the Senate are not reading the bill, as it specifically addresses the terrorist concern. It excludes the protection of sources, "if it is necessary to prevent an act of terrorism," or is "necessary to prevent an imminent death or significant bodily harm." If that clause does not address the terrorism concern of the President Bush, then I do not know what does.
All three current presidential candidates support the shield law in some form. Why then does the president lobby so hard against it? The answer is crystal clear; he does not want information to get to journalists. He wants a shield around the White House but not around journalists. Why? He must be afraid that more information such as wire tapping lawyers and evading the court system set up by Congress would be front page news. It would be, and it should be. No administration, Democrat or Republican, should operate in such secrecy. The nation's founders mandated transparency and accountability. You cannot have either without a free and uninhibited press.
When I first started covering the White House during the Clinton era, the famous Helen Thomas, a White House veteran who covered President Kennedy, said to me, "Don't kiss up, and don't ever forget that a free press is one of the only things that keeps this country free." If journalists are going to be fined and jailed for having to reveal their sources, then how will we remain free?