More on the Federal Shield Law

On Thursday I wrote about the proposed federal shield law that has just passed the Senate Judiciary Committee. The bill would protect journalists’ sources, but would also, I said, “create, in effect, a privilege to leak classified information.” Andy McCarthy writes, with further thoughts on Section 2(A)(2)(iii) of the act, which dictates when law enforcement agencies can obtain the source of a leak of classified information:

(iii) in a criminal investigation or prosecution of an unauthorized disclosure of properly classified information by a person with authorized access to such information, such unauthorized disclosure has caused or will cause significant and articulable harm to the national security;:

Andy writes:

John,
Great post on the shield law proposal. Reading the language of the bill, I think it could actually be even worse than you suggest. I’m focused on the gratuitous inclusion of the word “properly.”
If I were a defense lawyer, I’d argue that he government now has an additional burden to satisfy a court that the information at issue was classified for proper reasons (e.g., for legit national-security reasons as opposed, say, to covering up corruption or incompetence). There is no good reason to have “properly” in the text: (a) it should be enough that the information is classified (otherwise, you potentially make every leaker a law unto himself, applying his own subjective sense of whether something has been “properly” designated as secret); and (b) the bill imposes on the gov’t the burden of proving “significant and articulable harm to the national security,” and there would be no way to satisfy that burden unless the information at issue had been properly classified — so why require the government, in addition, to establish that the classification was proper?
A really bad, totally unnecessary law. I ran a prosecutor’s office for many years, and I can count on the fingers of one hand (and still have one or two fingers left over) the number of times I authorized the issuance of a subpoena to a reporter, and I think in my own cases I only did it twice in 18 years — and one of those was just to obtain a copy of a CNN report that was aired on TV (i.e., I didn’t seek any out-takes), and I only did it because the defense lawyer refused to stipulate that the copy one of my agents had made was authentic.
The Justice Department rules on this are deferential to the media’s important function in our system and very strictly enforced — in both the district offices and at Main Justice.

The Democrats are proposing bad legislation at such a fevered pace that it is impossible to keep up with it all.

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