U.S. lawmakers, concerned about recent federal investigations of journalists who publish classified information, are considering legislation to protect reporters from revealing information learned under the promise of confidentiality. The Senate Judiciary Committee is holding a series of hearings on the issue. On Tuesday, the panel focused on the case of the late investigative reporter Jack Anderson, whose archive of papers is being sought by the Federal Bureau of Investigation.
Pulitzer Prize-winning journalist Jack Anderson spent his career exposing corrupt politicians and government scandals, from a CIA plan to assassinate Fidel Castro to the Reagan administration's secret arms-for-hostages deal with Iran.
The FBI has long sought Anderson's papers, saying that any documents that contain classified information belong to the government. Their effort has continued, even after Anderson's death last December at the age of 83.
The FBI probe comes as the federal government is threatening to prosecute journalists who publish classified information and refuse to reveal their sources. The Justice Department is investigating several leaks that led to the publication of a CIA officer's name and news reports that the National Security Agency is wiretapping communications between people in the United States and suspected terrorists overseas.
At a Senate Judiciary Committee hearing, Matthew Friedrich, chief of staff for the criminal division at the Justice Department, defended his agency's actions: "Our primary focus is on prosecuting the leakers as opposed to other options, and our much preferred path would be to attempt to work with reporters voluntarily to convince them not to publish classified information, which could lead to compromise of our most sensitive technologies, harm our young men and women who serve in the service of our country, and cause damage," he said.
But Friedrich refused to discuss the Anderson case, to the anger of Republican and Democratic senators alike.
Senators made their frustration over that refusal clear.
"I would think the department would send somebody here to testify that could answer our questions if they had any respect for this committee whatsoever," said Senator Charles Grassley, an Iowa Republican.
"That basically answers it. They do not have any respect for this committee. Why in heaven's name were you sent up here?," said Senator Patrick Leahy, a Vermont Democrat.
Friedrich said the Senate panel was notified that he would not be able to respond directly to the Anderson probe before the hearing began, but said the FBI is preparing to answer the committee's questions.
Anderson's son Kevin, who is a lawyer in Utah, also testified before the committee. "Dad often said that documents that came across his desk were classified as national security secrets, but he characterized them as really political security secrets. They showed the misdeeds and manipulations of government employees who had abused the public trust, and then tried to sweep the evidence under the secrecy stamp. Such information should not be hidden from the people. Ours is a government of the people. Dad taught us that the people are sovereign. Those who work in government are our servants," he said.
He said he and his mother are prepared to face contempt charges if the FBI's effort to search the papers produces a subpoena or is upheld in court.
Mark Feldstein, the director of the Journalism Program at George Washington University who is writing a book about Jack Anderson, says FBI agents came to his home in search of some 200 boxes containing Anderson's papers on grounds of national security.
Allowing the FBI access to the records, he says, would have what he calls a chilling effect on both journalists and academics. "For journalists, the concern would be that their source notes, confidential sources, would be revealed to law enforcement authorities, and that that would produce a chilling effect, making other whistleblowers reluctant to come forward out of fear that their identities would become known. For academics, historians are always very concerned about trying to keep historical archives in order and not have them rifled through, because often order matters, and also it may discourage people from donating their papers in the future," he said.
The chairman of the Judiciary Committee, Republican Senator Arlen Specter of Pennsylvania, acknowledged that national security must be protected, but he expressed concern about the federal probes of journalists. "The national security interests are enormous. They have to be balanced with the constitutional rights. But when you have a criminal statute where you can send people to jail and have a chilling effect on newspapers, it is really the congressional role to define it, and to establish standards. I think clearly the ball is in our court [the issue is the responsibility of Congress]," he said.
Specter has introduced legislation that would protect journalists and their employers from having to reveal information that a journalist learns under the promise of confidentiality.
Under the bill, a federal prosecutor in a criminal case could not compel a journalist to reveal protected information unless certain criteria are met, including that a court finds clear and convincing evidence that the prosecutor has exhausted alternative sources and that the public interest favors disclosure. The measure would require a journalist to disclose any information that would be needed to prevent an act of terrorism or harm to national security.