Shielding What?

The proposed federal shield law, S 448, the “Free Flow of Information Act,” passed the Senate Judiciary Committee today on a 13-6 vote. The idea behind the statute is to protect journalists and their sources. It was sponsored by Arlen Specter, Chuck Schumer, Richard Lugar and Lindsay Graham, which tells you all you need to know.
Republicans offered a series of amendments intended to protect, for example, the secrecy of troop movements and battle plans, but these were all voted down by the Democrats. What is most troubling to me about the act is that it creates, in effect, a privilege to leak classified information. Section 2(A)(2)(iii) dictates when law enforcement agencies can obtain the source of a leak in such cases:

(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;

Federal employees with access to classified information agree not to leak that information, and can be subject to criminal prosecution if they do. This shield law, however, would erect a new, much higher threshold: in order to find out who leaked to a journalist (usually a reporter from the New York Times or the Washington Post), even assuming that the leak was itself a crime, law enforcement would have to satisfy a federal judge that the leak has caused, or will cause, “significant and articulable harm to the national security.” That is a remarkably high threshold. While the “Free Flow” act does not explicitly legalize leaks that may not satisfy that high standard, it likely will make such leaks de facto impossible to prosecute. This is, apparently, what the Democrats want.