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What’s the Point of a Source Protection Law That Wouldn’t Protect Chelsea Manning or Edward Snowden?

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Posted on May 19, 2014

By Carey Shenkman

(Page 2)

The efforts to punish “illegitimate” news are already underway. Former NSA chief Gen. Keith Alexander stated in early March that he is pushing “media leaks legislation” in the coming weeks that is clearly targeted toward whistle-blowers and their publishers. And the federal government, particularly the Obama administration, already uses the Espionage Act of 1917 to cleanse the nation of what it deems “illegitimate” news by punishing whistle-blowers and bringing secret investigations of publishers.

Perhaps these compromises would have a shred of justification if they achieved some positive outcome for some media. Notwithstanding the bill’s inspiration—subpoenas and even extended litigation (in the case of James Risen of The New York Times) of high-profile national security journalists—the current version has broad exceptions for national security. A prosecutor may overcome the shield by showing that the information sought would “materially assist” the government in “preventing” or “mitigating” an “act of terrorism”—a definition the Department of Justice can and will argue covers nearly anything. The legislation also instructs judges to give “appropriate deference” to the executive branch’s decisions on national security. Consider that a District Court judge wrote in early April dismissing the Al-Aulaqi v. Panetta case (concerning a drone strike that killed a U.S. citizen without any due process) that executive branch officials must be “trusted.” Judges certainly do not need to be told to trust the executive more.

The umbrella of terrorism is now bigger than ever. This administration takes the position that national security whistle-blowing aids crimes against the state. Notably, prosecutors tried to put Manning away for life for “aiding the enemy” by providing documents that were ultimately published by The New York Times. The government uses this language not just with whistle-blowers, but with journalists too. James Rosen of Fox News was accused of being “an aider, abettor and/or conspirator” of a national security source.

Another problem with the bill is that it addresses only subpoenas, one of several ways for the FBI and DOJ to identify whistle-blowers. It fails to deal with surveillance, which is easier and less politically costly. Lawyers for the CIA, FBI and Pentagon reportedly acknowledged to journalists, ominously, “You can get a shield law, but you’ve probably seen your last subpoena. We don’t need you anymore.” Perhaps it would be better to invest the resources spent lobbying for this legislation in educating journalists on using data security and anonymity tools.

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The FFIA is part of a broader campaign to try to box out organizations that have the courage to give a voice to whistle-blowers. It is clear that the legislators behind the bill view The Intercept and WikiLeaks as bargaining chips whose exemption will get the measure passed. Worse, it is doubtful the bill does what it sets out to do. And the stage is being set for the government to fully go after independent journalists and whistle-blowers through legislation like Alexander’s. Really, it must be asked, what’s the point?

Carey Shenkman is a First Amendment scholar working in New York City for Michael Ratner, president emeritus of the Center for Constitutional Rights. He can be reached @CareyShenkman on Twitter.


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