Thoughts on The Free Flow of Information Act - Part II

Lets assume the Free Flow of Information Act, the proposed reporter’s shield law I blogged about on Tuesday, would lead to greater public disclosure of government wrongdoing. That alone might explain why AG Michael Mukasey opposes the law. But what about his claim that a reporter’s shield would place vital information beyond the reach of federal prosecutors and "core national security authorities." We've heard the "war on terrorism" cry before, so Mukasey’s claim deserves a closer look.

First, its important to understand what the bill does not do. It does not withhold essential information from any federal agent. In fact, I’d call it an exaggeration to say the bill guarantees confidentiality at all. It only requires investigating agents to look elsewhere for essential information before a reporter can be subpoenaed. They can in fact compel disclosure if that initial search bears no fruit. Requiring the feds to play by the rules is not the same as hiding the ball.

Second, important limitations narrow the reporter’s protection. The right of confidentiality is not absolute if the reporter commits a crime or witnesses a crime, and it doesn't apply at all to information that would help prevent the most serious crimes.  See section 4.

What about national security? Confidentiality does not apply to information "a federal court has found by a preponderance of the evidence would assist in preventing an act of terrorism." Period. Doesn’t apply. Nor does it apply when a "significant and articulable harm to national security" outweighs the public interest in maintaining the free flow of information. See section 5. The very act of balancing interests presumes the former would trump the latter in necessary circumstances.

Perhaps its the "preponderance of the evidence" standard that gives Mukasey pause, or the requirement for showing a "significant and articulable harm to national security." But isn’t any threat to national security "significant," so long as it is credible? And doesn’t the "preponderance of the evidence" standard simply mean that the information is more likely than not to establish cause? Here that means cause to believe the information would "assist" federal agents in doing their job. Assist: to give aid, to advance in some degree. Is this what’s so objectionable? It might be different if agents had to show that the desired information was "necessary," "essential" or even "highly likely" to benefit national security. But they don’t. And there is no doubt that federal courts already know how to protect legitimate executive secrets when conducting a disclosure hearing; think in-camera review.

Besides, government agents wouldn’t have to worry about any of this if the information they want would help prevent a specific case of death, kidnapping or serious bodily harm. The proposed statute doesn’t recognize a right to confidentiality in those circumstances. Again, section 4. And isn’t death, kidnapping and bodily harm what most terrorist acts and threats to national security involve?

Maybe the burden of accountability troubles Mukasey, the very idea of having to appear before a federal court and articulate a reason for disclosure. But to borrow words from the late Justice Thurgood Marshall, "it is not burdensome to give reasons where reasons exist." The Administration, just like reporters, must operate within the bounds of the law, and ever since Marbury v. Madison that’s meant submitting to the jurisdiction of a competent court. If there’s a case for compelling disclosure, surely the government can make it, and I don’t see how the Free Flow of Information Act would stand in its way.

There’s more . . . but that’s for another day.

-Kathleen A. Bergin