[Senate Hearing 109-837]
[From the U.S. Government Publishing Office]
S. Hrg. 109-837
REPORTERS' PRIVILEGE LEGISLATION: PRESERVING EFFECTIVE FEDERAL LAW
ENFORCEMENT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 20, 2006
__________
Serial No. J-109-111
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 26
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin,
prepared statement............................................. 94
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 95
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 8
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Baird, Bruce A., Partner, Covington & Burling LLP, Washington,
D.C............................................................ 20
Clymer, Steven D., Professor, Cornell Law School, Ithaca, New
York........................................................... 16
McNulty, Paul J., Deputy Attorney General, U.S. Department of
Justice, Washington, D.C....................................... 2
Olson, Theodore B., Partner, Gibson, Dunn & Crutcher LLP,
Washington, D.C................................................ 14
Schwartz, Victor E., Partner, Shook, Hardy & Bacon LLP,
Washington, D.C................................................ 18
QUESTIONS AND ANSWERS
Responses of Bruce A. Baird to questions submitted by Senator
Kennedy........................................................ 28
Responses of Steven D. Clymer to questions submitted by Senators
Kyl and Kennedy................................................ 30
Responses of Paul J. McNulty to questions submitted by Senators
Kyl, Leahy and Kennedy......................................... 46
Responses of Theodore B. Olson to questions submitted by Senator
Kennedy........................................................ 69
Responses of Victor E. Schwartz to questions submitted by Senator
Brownback...................................................... 72
SUBMISSIONS FOR THE RECORD
American Beverage Association, Association for Competitive
Technology, Chamber of Commerce of the United States, Food
Products Association, Grocery Manufacturers Association,
National Association of Manufacturers, and Rubber Manufacturers
Association, joint statement................................... 80
Baird, Bruce A., Partner, Covington & Burling LLP, Washington,
D.C., statement................................................ 81
Clymer, Steven D., Professor, Cornell Law School, Ithaca, New
York, statement................................................ 85
McNulty, Paul J., Deputy Attorney General, U.S. Department of
Justice, Washington, D.C., statement........................... 98
Olson, Theodore B., Partner, Gibson, Dunn & Crutcher LLP,
Washington, D.C., statement.................................... 115
Schwartz, Victor E., Partner, Shook, Hardy & Bacon LLP,
Washington, D.C., statement.................................... 129
U.S. Chamber of Commerce, R. Bruce Josten, Executive Vice
President, Government Affairs, Washington, D.C., statement..... 141
REPORTERS' PRIVILEGE LEGISLATION: PRESERVING EFFECTIVE FEDERAL LAW
ENFORCEMENT
----------
WEDNESDAY, SEPTEMBER 20, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:33 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Kyl, Brownback, and Schumer.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. The
Senate Judiciary Committee will now proceed with our hearing on
reporters' privilege.
This issue arises from legislation introduced by Senator
Lugar in the U.S. Senate and by Congressman Pence in the House.
It has been modified and introduced under the caption of the
Lugar-Specter bill in the Senate. We have had three hearings on
the issue and have had testimony from some 21 witnesses. Our
concern here is on public information. These issues always
start with Jefferson, who said, ``I would prefer to have
newspapers without government than government without
newspapers.''
The noted columnist William Safire had the essence of the
issue on a hearing before this Committee: ``The essence of news
gathering is this: if you don't have sources you trust and who
trust you, then you don't have a solid story, and the public
suffers from it.''
The motivation to move ahead in this area comes from a
couple of directions. One direction is that there is a deep
split among the circuits. The First, Fourth, Fifth, Sixth, and
Seventh do not allow journalists to withhold information absent
governmental bad faith. Four other circuits--Second, Third,
Ninth, and Eleventh--recognize a qualified privilege which
requires courts to balance freedom of the press against the
obligation to provide testimony on a case-by-case basis.
That split is important to rectify or to have some
governing law, and we are very much concerned about the Judith
Miller issue on being jailed for some 85 days. Where you have a
national security interest, there is a reason to proceed and
perhaps hold someone in contempt. I say ``perhaps'' because it
is a very strong remedy.
I visited Judith Miller in the detention center in
Virginia, and as I have said in this hearing room before, I
wondered why the investigation proceeded after it was apparent
that there was no national security interest. It is one thing
to pursue an investigation on a national security interest and
to incarcerate even a reporter. It is quite another if you are
investigating perjury and obstruction of justice.
Those are serious matters. I was a prosecutor myself and
know the importance of stopping perjury and stopping
obstruction of justice. But it reaches a different level on
incarceration of a reporter and on the issue of national
security. That is perhaps the exceptional situation, and I say
``perhaps'' because it is a very heavy remedy.
We have talked to the distinguished Deputy Attorney General
about this matter informally. The Department of Justice is very
concerned about whether it will hamper their activities on
national security cases or in criminal prosecutions, and we
decided to have an extra hearing today to see if we can find a
way to modify the legislation, if we deem that appropriate with
the wisdom of the distinguished panel we have here today.
So that brings us to you, Mr. Deputy Attorney General, an
outstanding record as a prosecutor and doing an outstanding
job, in my opinion, in the Department of Justice.
Parenthetically, we were pleased to confirm the Assistant
Attorney General for the Criminal Division, Ms. Fisher,
yesterday in a very, very unusual proceeding.
I have been joined by my distinguished colleague, Senator
Kyl, to whom I yield at this point for an opening statement.
Senator Kyl. Well, Mr. Chairman, it might surprise some
that I would rather hear from the witnesses, and I am sure you
would, too. So I will forego an opening statement except to say
thank you for holding this hearing. And I especially thank all
of the witnesses who are here to give us their advice and
counsel.
Chairman Specter. We are going to have to stick pretty
close to the time limits because a vote is scheduled at 11
o'clock, and our experience has been that if you break for a
vote, hardly anybody comes back. That might not be too big a
difference in the crowd of Senators we have now, so we will see
how it goes. But I would like to finish by 11, 11:15, if we
can.
Mr. McNulty, the floor is yours.
STATEMENT OF PAUL J. MCNULTY, DEPUTY ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. McNulty. Thank you, Mr. Chairman, Senator Kyl. Among
the benefits of serving in the Department of Justice leadership
are the memorable experiences of testifying before the Senate
Judiciary Committee, and this is my second memorable experience
in 8 days. And so I am ready to give somebody else a chance.
Chairman Specter. Are you free next week, by the way?
[Laughter.]
Mr. McNulty. But what brings us here today again is another
challenging issue. Challenging issues invariably require the
balancing of important interests, and today's topic is a clear
example of that. We are duty bound at the Department of Justice
to conduct diligent and thorough investigations and, in doing
so, to protect civil liberties, including the First Amendment
right of free speech.
As a Nation, we are fully capable of both protecting our
security and preserving the media's right to engage in robust
reporting on controversial issues. Security and freedom are not
mutually exclusive or, as Justice Goldberg famously observed,
the Constitution ``is not a suicide pact.''
The Department of Justice has developed a strong record in
striking the right balance. At the heart of today's discussions
is the concern for our National security. An individual who
leaks classified national defense information to the press
commits a crime. Leaking classified information reflects a
profound breach of trust.
The consequences of leaking can be particularly grave.
Leaks lay bare aspects of our National defense and risk arming
terrorists with information needed to avoid detection in their
plotting against our Nation.
Some see leakers as nothing more than whistleblowers who
are caught in a dilemma between, on the one hand, allowing what
they believe may be unlawful or questionable activity to
continue within the Government and, on the other hand, an
inability to disclose the information without committing a
crime. These so-called whistleblowers, the argument runs,
escape the dilemma by turning to the media and receiving a
promise of confidentiality from a journalist.
This dilemma is a false one. It incorrectly assumes that
the media is an individual's only outlet. That is not true. The
Intelligence Community Whistleblower Act of 1998 was an effort
by Congress to address this very issue. Congress established
mechanisms through which members of the intelligence community
could voice concerns while ensuring that classified information
would remain secure.
With these mechanisms in place, it is a mistake to dub an
individual who leaks classified information as a whistleblower.
A leaker commits a crime. A whistleblower, by contrast, follows
the legal course of disclosure enacted into law by Congress.
Upon learning of a leak of classified information to the
media, our primary focus, as the Attorney General has stressed,
is on identifying and prosecuting the leaker, not a journalist
who may have published the leaked information. This focus is
reflected in the Department's guidelines for the issuance of
subpoenas to the media. Those guidelines ensure that subpoenas
seeking confidential source information from journalists are
issued only as a last resort.
In the past 15 years, we have requested source information
from the media in less than 20 cases. The Department of
Justice's record then is one of restraint. We have diligently
investigated leaks while protecting the media's right to report
broadly on issues of public controversy.
Only in extraordinarily rare circumstances--less than 20
cases in 15 years--has the Department determined that the
interests of justice warranted compelling information
implicating sources from a journalist. During this entire time,
moreover, and indeed ever since the Department adopted its
guidelines in 1973, the media has not missed a beat. It has
continued to use confidential sources and to engage in robust
reporting on issues of extraordinary importance to our
communities and Nation.
Against this history, I respectfully suggest that the Free
Flow of Information Act of 2006 is a solution in search of a
problem.
Now, I see my time is about up.
Chairman Specter. That is all right. You may proceed,
Mr. McNulty.
Mr. McNulty. Almost finished, Mr. Chairman. Just a couple
more pages. In my remaining time, I wanted to highlight some of
the bill's most serious flaws.
First and foremost, by making it far more difficult to seek
source information from a reporter in those infrequent
circumstances when it proves necessary, the bill sends the
wrong message to leakers. It may encourage their unlawful and
dangerous behavior.
Second, the bill shifts law enforcement decisions from the
executive branch to the judiciary. This shift is
extraordinarily serious in the national security area where the
executive officials have access to the full array of
information necessary to make informed and balanced national
security judgments. The bill undermines this constitutional
responsibility and separation of powers by thrusting courts
into the altogether unfamiliar territory of having to weigh
national security interests against the public's interest in
receiving certain news. As numerous judges have recognized, the
courts lack the institutional resources and expertise to make
those decisions.
The bill goes even further, though. In imposing the burden
of proof on the government, it places a thumb on the scale in
favor of the reporters' privilege and tips the balance against
executive branch judgments about the nature and scope of damage
or potential damage to our Nation's security.
Section 5 of the bill is problematic for reasons of a
different variety. The Sixth Amendment entitles criminal
defendants to compel witnesses to appear in court and testify.
Section 5, however, would permit defendants to access a class
of witnesses only if, ``based on an alternative source,'' they
are able to show that the witness had information relevant to a
successful trial defense. The Sixth Amendment imposes no such
``alternative source'' requirement. Nor does the Sixth
Amendment, unlike the proposed bill, require a court to balance
criminal defendants' constitutional rights against the public
interest in news gathering and in maintaining the free flow of
information. Such a balancing requirement in this context is
entirely out of place.
For these reasons and the others contained in my written
statement, Mr. Chairman and Senator Kyl, the Department of
Justice firmly opposes the proposed bill, though we recognize
the clear and well-intended purpose of its sponsors and
supporters. And, Mr. Chairman, I also appreciate the efforts
that you have made personally, and your staff, to try to
address some of the concerns we have raised and the changes
that have been made in the legislation. But we still hold these
positions even with those efforts.
So thank you for the opportunity to testify here, and I
look forward to discussing this with you.
[The prepared statement of Mr. McNulty appears as a
submission for the record.]
Chairman Specter. Well, thank you, Mr. McNulty.
Starting the 5-minute rounds now, at the outset I disagree
with you that it is a solution in search of a problem. When you
have got a split in the circuits and you have got the Judith
Miller case, my view is it is something we ought to address
legislatively.
You have said or it has been noted that the legislation is
modeled after the guidelines of the Department of Justice, what
you already use. Can you give me a case illustratively where
the standards in the pending legislation would differ from what
the Department of Justice now does to prejudice the Department?
Mr. McNulty. You are looking for a specific case where we
have issued or an opinion has been issued--
Chairman Specter. Well, I am looking for the difference,
and instead of asking you to comment on the differences between
the two--and perhaps you cannot give it on the spur of the
moment. But I would like you to address that in concrete terms.
What kind of a case illustratively would prejudice the
Department by this legislation that would not hurt the
Department by using your guidelines?
Mr. McNulty. I think, Mr. Chairman, the heart of that
question or our response to that question goes to the national
security area, and in that I would say just a couple things.
By setting the standard the way in which the provision
relating to national security does concerning the need for the
Government--the burden is on the Government now, the burden of
proving significant harm and through clear and articulable
facts. So it is preponderance of the evidence, but it is clear
and articulable harm that has to be proven. We are put into a
very difficult situation, and I can think of a number of
hypotheticals where that standard creates real problems for us.
For example--
Chairman Specter. Let me interrupt and move it along
because I have a couple more questions. If you want to
supplement, do so in writing.
You have the contempt citation of Judith Miller. Had the
Lugar-Specter bill been in effect, I think she would not have
gone to jail. Would she have gone to jail by a proper
application of the Department of Justice guidelines?
Mr. McNulty. I really do not know how to respond to that
because that would require me to know all of the circumstances
and facts involved in that investigation which would lead to
our application of our guidelines to say that we have exhausted
all the other methods to obtain the information.
Chairman Specter. Well, may I ask you to make that inquiry?
Mr. McNulty. Well, the problem is--I would be happy to do
whatever the Chairman wants, but here is my problem. I am
recused of the investigation being conducted by Pat Fitzgerald,
and for me to get the information necessary to make a decision
about whether or not the Judith Miller case--
Chairman Specter. Can you delegate that? You have a
personal recusal?
Mr. McNulty. Well, it is the leadership recusal. The AG is
recused, I am recused. It is a Special Counsel investigation.
Now, Dave Margolis in my office is the person who oversees or
has supervisory control over the Special Counsel.
Chairman Specter. Well, I would like an answer to that
question from the Department of Justice. We are considering
oversight at the right time as to what the Special Prosecutor
has done. But that bears directly on this legislation. This
legislation was, as I said earlier, motivated significantly by
the Miller incarceration and the circuit split. So I would like
the Department to know the Department has continuing
responsibility for what Mr. Fitzgerald is doing.
Mr. McNulty. Yes.
Chairman Specter. The Department has the authority to
discharge him, for example, if the circumstances are
appropriate. So I would like whoever is not personally recused
to give us a response.
Mr. McNulty. I will take it back to the Department.
Chairman Specter. OK. You say--and I am concerned about
this, too--that the courts' lack ability to weigh national
security interests, and there is a fair amount of judicial
discussion of that dealing with the President's inherent
authority, which we have in the surveillance legislation. But I
was at the Judicial Conference yesterday talking to D.C.
circuit judges who have to weigh classified information on
habeas corpus, and the President has agreed to the electronic
surveillance bill where the court is going to weigh it.
Doesn't that show that the courts do have the capacity to
weigh national security matters?
Mr. McNulty. Well, I mean, courts do look at national
security issues in certain ways, but this one presents, I
think, an impossible task for the court because it requires the
court to know so much about the significance of a harm and be
able to say that this disclosure, which might, by the way,
involve some tactic or some effort by the Government that is
controversial and a matter of public discussion, and a judge is
going to look at that, every different judge looking at it in a
different way, and say that that outweighs this harm.
Now, the harm will have to be understood in the context of
all of the facts and aspects of harm that are going on. A
responsibility that constitutionally has been committed to the
executive branch, and courts have observed that repeatedly.
That would be a very big undertaking.
Chairman Specter. Thank you, Mr. McNulty.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman.
Let me pursue that same course because I think while there
are a lot of issues relating to the legislation, the one that
probably is of most national importance and the one that raises
the most questions in my mind is the exception for national
security interest, primarily Section 9.
The Chairman began to get into an area of inquiry that I
wanted to pursue as well, and that is, what kind of standards
there would be to evaluate whether or not the Government had
met its burden here. The language, for example, ``outweigh the
public interest in news gathering and maintaining a free flow
of information to citizens,'' how would a court look at this?
Is there a body of law? Is there some kind of a test? How would
you define whether you have satisfied the ``public interest in
news gathering'' test or ``public interest in maintaining a
free flow of information to citizens''?
Mr. McNulty. Senator, I think it would be highly
subjective. I think each judge would have to make that kind of
judgment on his or her own about this balance. And the problem
is the judge would do that knowing something of the harm--that
is, the intelligence community would try to muster all of its
information in some ex parte proceeding and present that as
best as possible. But by the very definition of the Act, it is
going to limit some of that information. And even doing it--and
this is one interesting point--even by going into court and
making this showing of significant harm, we are potentially
signaling to our enemy who may be involved in that story that
we believe that this disclosure is a significant harm. And
perhaps we have tried, for national security interests, to
downplay the disclosure or to in any way limit the damage from
the disclosure. But now by going after the source information,
we are saying that yes, indeed, we have enough evidence here to
convince this judge that a significant harm to national
security has happened.
Senator Kyl. And by the very nature of the effort here, it
is not something that can be kept secret or classified because
the whole point is to weigh the harm versus the other general
interest--
Mr. McNulty. Certainly that exercise would be public. The
information provided would be in camera.
Senator Kyl. The ``significant harm to national security''
is what we are talking about. That is the exact language. Do
you have a sense of what would have to be established in order
to demonstrate the harm is significant? In other words--let me
put it conversely--what harm to national security is not
significant?
Mr. McNulty. Well, that is right. I think that the term is
going to mean different things to different folks. Some judges
I think will say that, ``I believe if it involved national
security, I am going to err on the side of agreeing with the
Government in terms of the significance.'' Other judges will be
much different about that and will want to see very specific
information about that.
Another problem is that a disclosure sometimes can occur
that reveals something that may actually be partially known or
suspected, but it is related to other programs that have not
been disclosed. And now the concern of the Government is if we
do not get to the source of that information, we run the risk
of those other programs being exposed. And so now the
significant harm is just a bit extended. It is not about that
disclosure, but about that person's access to information where
the harm could be much greater.
Now, will a judge see that as clearly outweighing the
interest of the public for the information? It is hard to say.
Senator Kyl. What comes to my mind is the disclosure of the
national surveillance activity, as it has come to be known, and
immediately following the public disclosure were the calls for
the Government to answer the question: What other programs do
you have that are like that? Or are there any other programs
that are like that?
Is that a matter of concern?
Mr. McNulty. That is right. I think that is the kind of
widening circle effect that this can have.
Senator Kyl. One of the provisions here talks about, in
subsection (a)(2), ``unauthorized disclosure of properly
classified information.'' What does that mean?
Mr. McNulty. I am sorry. This is in section--
Senator Kyl. It is subsection (a)(2). It is part of general
Section 9. The (a)(2) exception, the Act will provide no
privilege ``against disclosure of information...in a criminal
investigation or prosecution of an unauthorized disclosure of
properly classified information...''
Mr. McNulty. Oh, right. This also is, I think, a
significant problem with the bill because now the court also
has to make a decision that this information has been properly
classified. And that in itself is a big undertaking because it
then puts the judge in the position of making--or exercising
the kind of judgment that experts in the field have to
exercise, which is to know that if this information were to get
into the hands of the enemy or do harm to the United States and
other aspects of classification.
So the judge is now saying, ``I am not sure I even buy that
you have classified this properly and, therefore, everything
that follows is I do not think that the disclosure of it is a
problem.''
Senator Kyl. Just a quick followup, Mr. Chairman. So you
don't read that as narrowly as just a procedural limitation
but, rather, the substantive judgment of whether it was
appropriate to classify the information in the first instance?
Mr. McNulty. That is how I read it. I certainly defer to
the authors and supporters if I am missing something there.
Senator Kyl. It does not say one way or the other.
Mr. McNulty. That is how I see it. And I want to quickly
just say and make sure there is no misunderstanding here, and I
will have to repeat myself. When we are talking about the risks
here on the national security front, the Government's interest
is to find the leaker. And I know that, because this is such a
sensitive subject, by talking about those concerns there in the
bill, it is easy to jump to the next conclusion, which is, oh,
OK, so every time there is a leak of something that is highly
sensitive, you want to go after the reporter. And the answer is
no. We want to go after the leaker, and that is why this
authority has been sparingly used, less than 20 times in 15
years. But it is about whether or not we will ever have that
ability if we believe that that is our last recourse in being
able to get the information.
Chairman Specter. Thank you, Senator Kyl.
Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman. First, I would
ask unanimous consent that Senator Leahy's statement be made a
part of the record.
Chairman Specter. Without objection, it will be placed in
the record.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. I want to thank
you for holding the hearing and thank Deputy Attorney
General McNulty for coming by.
I believe that--and I think everyone agrees--the press has
a vital role to play in our country in providing people with
information. A free and independent press is just as important
as a fair and independent judiciary, and the freedom is
enshrined in our Constitution with good reason. It is
exemplified every day by brave and intrepid men who make up the
most vibrant and effective press community in the world.
To be sure, the threats to a free press come from many
quarters, not just the Government. If you pick up a newspaper
this morning, you will be shocked to see that a respected
international company, Hewlett-Packard--it is here in the New
York Times here--looked into infiltrating newsrooms to identify
leakers of confidential corporate information. So this problem
is everywhere, and it is probably going to get greater, not
less, as we depend on information more and more and more in our
society.
So there certainly is a need to protect press independence.
In order for the media to do their job, we know it is important
for them to use confidential sources. In many cases, there is
no problem in protecting confidential sources. When Government
officials are acting as whistleblowers, as a confidential
source in the Government says the agency has doctored a study,
or when the Government is hiding important information whose
disclosure will not harm national security in any way--in those
cases I think every one of us would want the reporter to be
able to get the information and have it out, unless we want to
change the whole fabric as to the way this Government has been
going for over 200 years.
But in other cases, the leak itself is per se a violation
of law, and that is the problem I had with the broader bill
that was introduced. Not all leaks are OK, which is what the
broader bill said. When a person leaks secret grand jury
information, that is against the law. Society has made a
determination: You leak grand jury information, that is against
the law. There is no countervailing issue here because we have
made that--and it is routinely done by prosecutors to aid their
cases. We have all seen it.
The Plame case is another one. Leaking the identity of a
covert CIA agent is against the law. There is no justification
for a reporter holding information. In cases like these, the
harm done by the leak and the need to punish the leaker often
far outweighs the need to keep a source confidential.
So we have a balancing test here. How do you draw the line?
And I think the bill that Senator Specter has drawn up and I
have cosponsored recognizes there must be a balance. It
recognizes we have to preserve a free press but ensure that
criminals are brought to justice. It recognizes that not all
disclosures by Government officials to members of the press are
equal. That is the fundamental wisdom of the bill. And you have
extremes on both sides saying the press is right all the time,
it should always be protected, and then the press is never
right, it should not be.
We certainly want to protect a whistleblower. We certainly
want, if someone at the FDA sees that tests are being short-
circuited and goes to the higher-ups and they say, ``Go away,''
that they be able to go to the press and expose it. On the
other hand, when something is publicly prohibited by statute
from being made public, it is a different story. When there is
an overriding public interest against disclosure, which there
is not in the typical whistleblower case, the press must bend
to the needs of law enforcement.
One of the problems, of course, is that the government has
a self-interest in overclassifying things, and not just in
national security. You could make a hypothetical argument that
some Government official would say everything we do is
classified. So we have to be mindful of that as well, and you
pointed out, Mr. Deputy Attorney General, someone has to make
that determination. I would argue a judge is often better at
making that determination despite his or her lack of
familiarity than the self-interested Government is in case
after case after case.
So the legislation does seek that balance. It is not an
easy balance, but I think this legislation, unlike the previous
bill, it is better to have it than not to have it, and that is
why I am supporting it. But I want to make two other points,
and then I will conclude.
First, I was struck by a statement in Mr. McNulty's written
testimony. You say, ``There is no virtue in leaking. It
reflects a profound breach of public trust and is wrong and
criminal.'' I understand that point of view, but many leaks
outside of the national security context have been good for
America. Movies extol leakers. Books do. Our society does.
Every President has. So I think that statement goes quite
overboard, and I was wondering if you meant it only in the
national security context.
Second, I worry that this administration has engaged in a
pattern of selective outrage. I worry that the administration
employs a double standard when it comes to leaks and the harm
to our National security. Congressman Delahunt and I sent a
detailed letter to Attorney General Gonzales and John
Negroponte on July 18th, pointing out case after case where it
was clearly classified information that was leaked, and we did
not hear a peep from the Government because it seemed to serve
their interests to have that information out, and then others
where everyone was on their high horse condemning the leak.
So a review of the record, at least our review, leaves the
impression that the administration is unconcerned about leaks
of classified information to certain media sources,
particularly when the revelation may have provided a political
advantage to the administration, and that ultimately is
destructive of the values that you seek to assert in your
testimony.
Well, I received a response from Mr. Negroponte. He said--
Chairman Specter. Senator Schumer, how much longer do you
need?
Senator Schumer. About 30 seconds, Mr. Chairman.
Chairman Specter. We are looking at an 11 o'clock vote, and
I had said--
Senator Schumer. About 30 seconds.
Chairman Specter [continuing]. Earlier we would have to
stay within the time limits.
Senator Schumer. I need about 30 seconds.
Chairman Specter. Fine.
Senator Schumer. I did not receive a response from the
Justice Department, even though Negroponte said, ``Questions
regarding the number of referrals and the status of any
associated investigation have been referred to the Department
of Justice, which is best able to determine the information
that can be provided in these matters.''
So I am asking you, am I going to get a reply to my letter?
Mr. McNulty. I will check it out.
Senator Schumer. Fine. Please, would you get back to me?
Mr. McNulty. Yes.
Senator Schumer. This is an important issue. It relates to
this legislation. We deserve a response. It was a very careful
and well-thought-out letter.
Mr. McNulty. OK.
Senator Schumer. OK, fine.
Let me conclude by saying just as we have to balance
liberty and security, we need to balance a free and independent
press against the needs of law enforcement, and I think this
legislation comes as close as one can to striking that balance.
I yield.
Chairman Specter. There is no question pending, Mr.
McNulty, but would you like to answer.
Mr. McNulty. Sixty seconds. I know we are moving along
fast.
I wanted to say first my statement's language was not
properly qualified. I apologize for that, because my intention
here is to talk about the unlawful leaking. ``Leaking'' is a
general term, and it is best to use it in a qualified way. And
I am referring here to where it is a violation of law. I
certainly understand your point about the fact that disclosing
information generally can be certainly not a violation of law
and, therefore, can be of some help, or whatever, depending
upon the circumstances.
Just one other quick point, and that is, I really
appreciate, Senator Schumer, your acknowledgment of the fact
that there is an area where it is unlawful to disclose
information, whether it is classified or it is grand jury. My
concern about this bill is that no matter what side of the
debate you are on here, you have to say that it is going to
make it harder for the Government to get this information. That
is sort of the point of it, that we have to go to court. We
have the burden, and we have to convince the judge that this
interest and this need outweighs the public right to know and
gather information from the media and so forth. And that alone,
I think, sends a troubling message to the unlawful disclosure
of information because it says that now it is just that much
harder for the Government to ever find me if the Government is
going to try to do it. There is a greater burden, there are
more obstacles, and I think it could encourage that process
rather than discourage it.
Chairman Specter. Thank you, Mr. McNulty.
We are going to be pursuing this legislation, Mr. McNulty,
and we will continue to work with you to see if we can find an
accommodation. I understand your position today, and we wanted
to have this hearing, as I said earlier, to have a public
discussion of the position of the Department of Justice. And we
want to see if we cannot accommodate your interest, but I think
it is highly likely-- and, of course, I cannot speak for the
Congress, only for myself. But I think it is likely we will be
proceeding with the legislation.
Mr. McNulty. Senator, Mr. Chairman, I would like to submit
for the record an answer to a question I did not get, which is
to respond to the former Solicitor General on his concerns
about the case law and the split among the circuits. You raised
it in your opening statement.
Chairman Specter. You want to respond to a question you did
not get?
[Laughter.]
Mr. McNulty. Because I think it is important for the record
to have the Justice Department's view on that subject, since
the former Solicitor General is a distinguished person and I
want to make sure that we have responded to that issue in
particular. And it is just to say that I think that this issue
of what the First Amendment protects will still be in the
circuits even after this legislation is passed. I think that
reporters would still take that issue up, and you could have a
disparity. You will shift the disparity, if there is one, in
the circuits-- and I believe as a practical matter, that
disparity has proved to be a significant issue. But you will
shift it to the district court where you will have now all the
Federal judges with their different way of making this balance,
and you will end up with some weird things about how in some
places in the country it is easier to disclose this to the
press, other places it is not because of the way judges
operate. And so I think that the problem is not fixed, if there
is one, in terms of uniformity, by shifting this to the courts.
Mr. Chairman, thanks for letting me say that.
Chairman Specter. OK. Thank you very much, Mr. McNulty.
Thank you for coming in.
Senator Kyl. Mr. Chairman, I was hoping to have a second
round of questioning. We will never have a more qualified
witness than Mr. McNulty here.
Chairman Specter. You may proceed.
Senator Kyl. I would appreciate that very much. I will
continue to be very brief.
Chairman Specter. You may proceed.
Senator Kyl. But I want to focus again on Section 9, on the
national security exception, because I think this is where we
really have to pay attention.
One of the definitions is with respect to acts of terrorism
against the United States. That is where you can have an
exception to the privilege. And I am wondering whether, Mr.
McNulty, there are situations in which we might want to act and
situations where the potential act of terrorism is against
Canada or the United Kingdom or Mexico or some other country.
Why just an act of terrorism, in other words, against the
United States? And, also, could you envision circumstances in
which the issue would be preparation of an act of terrorism
rather than an act itself?
Mr. McNulty. The limitation to the United States did strike
me as being a potential concern here because we are in such
close alliance with Canada and the U.K., for example, in terms
of threat. And the recent attack planning that went on in the
U.K. this summer I think illustrates what you could get into
here in terms of trying to convince a judge that this raises
significant harm in the United States. But that is a potential
problem.
Senator Kyl. There is another definitional issue here, and
I am just perplexed. Maybe I should address this more to the
authors. But it applies, the words are, ``by a person with
authorized access,'' and I am wondering what sense it makes for
the bill to say that there is no privilege in a criminal
investigation of unauthorized disclosure of information by a
person with authorized access, but you could have a privilege
when a person with unauthorized access discloses the
information. Is that a situation that, in your view, could
occur? And would it pose a problem?
Mr. McNulty. Absolutely. The ultimate harm here is the
disclosure of the information, so the chain of control may not
be the deciding factor. And it could very well be that the
individual who had access was not authorized to have it, but
found the information anyway or went after it in some fashion,
acting as an agent in some fashion.
So I think it could create probably an unintended
consequence.
Senator Kyl. Even a staff assistant that obviously was not
cleared--
Mr. McNulty. Right.
Senator Kyl. OK. Just quickly moving on, in the definition
section, Section 3, ``attorney for the United States,'' it
appears to me that--and it is or any ``other officer or
employee of the United States in the executive branch. .
.with the authority to obtain a subpoena or other compulsory
process.'' Wouldn't this provision include JAG officers? And if
that is the case, could this negatively impact military
tribunals or terror trials by limiting what Government
attorneys can compel? Wouldn't it be worth considering a JAG
exception, for example, to the rule?
Mr. McNulty. Yes, I think the language is broad enough to
include military attorneys because it refers to an employee of
the United States generally in the executive branch. So that
means then that some of the circumstances where this could come
up with be--and this may be more of an issue down the road, an
unusual situation involving a military investigation and
prosecution, and they raise some question about the court of
jurisdiction there, too, as well.
Senator Kyl. Given the fact that we are considering how to
do these military tribunals and so on, it seems to me that that
is an important issue that we should look at.
Let me just ask finally, to try to keep within the time
here, there was one thing that struck me as odd outside of this
National security exception, and I would like to get your
comment on it. In Section 7, it says, ``If the alleged criminal
or tortious conduct is the act of communicating the documents
or information at issue, this section shall not apply.'' In
other words, there is a privilege.
Is there a rationale, in your view? Why should a journalist
have a privilege when the act of communicating the documents or
information to the journalist is a criminal act? What is the
rationale for that, in your view? I guess the question from
your point of view of a prosecutor, what issues would that
raise?
Mr. McNulty. Well, that is a complicated question. It
raises the question of in what way does the violation of
criminal law occur with the disclosure itself, and I concede
that that is one of the trickier subjects here in this.
The argument could be made on the side of those supporting
the bill that the disclosures, generally speaking, would
violate--in all aspects could violate the law and, therefore,
that would swallow up the privilege itself. But then you have
that issue that Senator Schumer raised as well, that you do not
want to protect illegal activity.
So it becomes a difficult matter to navigate in this
legislation.
Senator Kyl. I appreciate it.
Mr. Chairman, in view of your time constraints, I would
simply submit some additional questions for the record to
Mr. McNulty, and thank you.
Chairman Specter. Fine. Thank you very much, Senator Kyl.
Thank you very much, Mr. McNulty.
Mr. McNulty. Thank you, Mr. Chairman.
Chairman Specter. We now turn to our second panel:
Honorable Theodore Olson, Professor Steven Clymer, Mr. Bruce
Baird, and Mr. Victor Schwartz.
Our first witness is Theodore Olson, partner in the
Washington law office of Gibson, Dunn & Crutcher, where he co-
chairs the Appellate and Constitutional Law Group. Prior to
joining the firm, Mr. Olson served as Solicitor General. He was
involved in high-profile cases involving Hamdi v. Rumsfeld and
Rumsfeld v. Padilla; headed the Office of Legal Counsel as an
Assistant Attorney General during the Reagan administration,
argued 43 cases in the Supreme Court; bachelor's degree from
the University of the Pacific and a law degree from the
University of California.
Thank you for joining us again, Mr. Olson, and we look
forward to your testimony.
STATEMENT OF THEODORE B. OLSON, PARTNER, GIBSON, DUNN &
CRUTCHER LLP, WASHINGTON, D.C.
Mr. Olson. Thank you, Chairman Specter, Senator Kyl. It is
a privilege to be here before this Committee to testify
concerning a matter that is important to the ability of
citizens to monitor the activities of and to exercise a
democratic restraint on their Government. One of the most vital
functions of our free and independent press is to function as a
watchdog on behalf of the people--working to uncover stories
that would otherwise go untold. Journalists in pursuit of such
stories often must obtain information from individuals who, for
fear of retribution or retaliation, are unwilling to be
publicly identified.
Naturally, these stories sting. Uncovering corporate
malfeasance, environmental pollution, official corruption, or
governmental abuse of power quite often exposes powerful,
influential interests. The response often is a lawsuit, a leak
investigation, and full-throated efforts to find and tarnish
the sources of the information. And subpoenas to the reporters
who uncovered these facts, these uncomfortable facts, are often
the weapons of first resort.
Recognizing the need for some protection for journalists
and their sources, 49 States and the District of Columbia have
laws providing some measure of protection to reporters from
subpoenas. Numerous Federal courts already grant similar
protections, some based upon the First Amendment and others on
Federal common law. And as you have observed, Mr. Chairman, the
circuit courts differ. You mentioned the circuits that provide
some measure of a privilege and some that do not. Some of them
provide protections in criminal cases, some only in civil
cases. So the Federal law is a hodgepodge. How can this make
any sense in Federal courts? This lack of uniformity creates
intolerable uncertainty regarding when a meaningful assurance
of confidentiality can be made.
This uncertainty renders many existing privilege provisions
in the States ineffective. Reporters cannot foresee where and
when they may be summoned into court for questions regarding a
particular story, and their editors, publishers, and lawyers
are similarly hamstrung by the confusion and can provide little
help.
This proposed legislation does not work a dramatic
expansion of the reporters' privilege or a realignment of
public policy, and it may not please everyone. That is usually
the case with legislation. But it is a long overdue recognition
that the privilege should be recognized and in Federal courts
should be uniform, and to the extent, consistent with the
privileges provided by State courts, those differences should
be eliminated. This Act regularizes the rules, and it merely
requires, among other things, that a party seeking information
from a journalist in a criminal or civil case be able to
demonstrate the need for that information, that it is real,
that it cannot be gleaned from another source, and that
nondisclosure would be contrary to the public interest.
Concerns over national security and law enforcement have
been properly addressed and fairly balanced. Naturally, the
Department of Justice does not want its judgments second-
guessed by judges, and I have the greatest respect for the
United States Attorneys and the Department officials making
these decisions, including General Gonzales and Deputy Attorney
General Paul McNulty. But we do not recoil from judicial
oversight of these types of decisions when it comes to
attorney-client or physician-patient privileges or search
warrants or FISA warrants. And there is no reason we should
reject it when it comes to a journalist's source of
communications.
Bear in mind that 39 State Attorneys General, not bashful
about protecting law enforcement prerogatives, have supported
recognition in a brief filed in the Supreme Court in the
Valerie Plame case. Indeed, they say that the absence of a
Federal shield law undermines the State law policy decisions
underlying those provisions.
Now, reasonable minds can disagree on the value of
anonymity granted for one story or another, even on the concept
of a reporter's privilege itself. But there should be no
disagreement that uniform rules are better than a hodgepodge of
a Federal system that leaves all parties in a state of
confusion.
I have been on both sides of this. I have been in the
Justice Department for 7 years in two different
administrations, and I respect the interests and integrity of
the law enforcement officials. But for another 30 years or so,
I have been a lawyer representing journalists, reporters,
broadcasters, and publishers, and it is extremely difficult to
tell those persons, who are a valuable component of our
constitutional system, what the law is. I do not see an
objection to a Federal law that attempts to regularize the
system and affect the common law policies that are already in
existence in many States and reflected in the Department of
Justice's voluntarily adopted guidelines.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Olson appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Olson.
Our next witness is Professor Steven Clymer, Cornell Law
School, he began his legal career investigating police
corruption as an Assistant District Attorney in Philadelphia--
somewhat after my time, Mr. Clymer. Why didn't you apply
earlier?
[Laughter.]
Mr. Clymer. I did not have my law degree then.
Chairman Specter. Had been an Assistant U.S. Attorney in
the Central District of California, involved in the high-
profile Federal prosecution of L.A. police officers charged in
the beating of Rodney King; now teaches criminal procedure,
evidence, and counterterrorism; undergraduate and law degrees
from Cornell.
Thank you for joining us, and we look forward to your
testimony.
STATEMENT OF STEVEN D. CLYMER, PROFESSOR, CORNELL LAW SCHOOL,
ITHACA, NEW YORK
Mr. Clymer. Thanks for having me here today, Mr. Chairman.
Chairman Specter. When were you an Assistant D.A. in
Philadelphia?
Mr. Clymer. I started there in 1983 and I left in 1986.
Chairman Specter. Was there much police corruption, police
brutality in 1983?
Mr. Clymer. Yes, there was a fair amount then.
Chairman Specter. And the D.A.'s office investigated it?
Mr. Clymer. Yes. Successfully, I might add.
Chairman Specter. Aside from my tenure, they did not do too
much of that. Of course, they did not have Commissioner Rizzo
to deal with. Times change. Nobody remembers Commissioner
Rizzo. Anybody remember Mayor Rizzo?
This comes out of my time, Professor Clymer, not yours.
[Laughter.]
Chairman Specter. You may proceed.
Mr. Clymer. Thank you. Thank you for having me here. I
would just like to make a couple of points and then answer any
questions that you may have.
First, I want to address the question about why there is a
need for this legislation now, and I guess that boils down to
the question of whether the present law in its present form is
an impediment to the free flow of information. And, quite
frankly, I think that is a hard case to make. The principal
example I will give are the recent high-profile leaks about the
NSA wiretapping program and the leak about the CIA detention of
al Qaeda operatives overseas.
Those two leaks of highly classified information came in
the face of widespread news coverage of the jailing of Judith
Miller--newspaper coverage that made very clear that there was
little or no Federal protection for anonymous sources.
That suggests to me that people who are inclined to make
leaks of that kind of information are going to make leaks
whether or not there is Federal protection for anonymous
sources. The people who made those leaks had to have known that
if the reporters in those cases were subpoenaed, they could be
compelled to testify about the identity of their sources. Yet
they chose, nonetheless, to make those leaks.
What are the other arguments we get for the need for this
law now? Well, there is an argument that is made by the media
often that there are more subpoenas now to reporters than there
ever have been before. I haven't seen statistics, but let's
assume for the sake of argument that is true, that now there
are more subpoenas than they have been in the past. One thing
is clear. Those subpoenas are not coming from the Department of
Justice, which issues on average less than one subpoena to the
media for source information every year. That would suggest
that any law that this body passes ought to exempt the
Department of Justice, which seems to do a very good job of
policing itself in this area.
The third argument that is made for the legislation is the
need for uniformity, and I think there are powerful claims that
uniformity across the Federal system is better than a lack of
uniformity. However, the proposed legislation will not
accomplish that uniformity. As the Deputy Attorney General
said, this legislation has a very subjective, open-ended, and
unstructured balancing test that individual district court
judges are going to apply on a case-by-case basis. It is a
balancing test that I believe is virtually unworkable because
it requires district judges to predict in individual cases what
disclosure of source information in that case will have on the
future flow of information to reporters.
With all respect to Federal judges--and they are due an
enormous amount of respect--I do not believe they are competent
to make that determination. And what that balancing test will
boil down to on a case-by-case basis are the subjective,
idiosyncratic views of individual Federal court judges. And so
you will not get uniformity as a result of this proposed
legislation. You will get greater disuniformity than we have
today.
Let's suppose I am wrong about that. Let's suppose there is
now a need for some legislation to increase the flow of
information to the news media. Will this legislation accomplish
that objective? I think the answer is clearly no. The most
important point in time for the flow of information is when an
anonymous source calls a reporter and seeks an assurance of
confidentiality. If the reporter cannot give a certain
assurance, the source may not disclose the information, and the
complaint about the present state of the law is there is no
certain assurance that a reporter can honestly give to a
source. This legislation does not change that one iota. This
legislation is subject to eight or nine separate exceptions and
a series of subjective balancing tests, depending on which
exception applies.
At the time the reporter talks to the source, it will not
be clear which one of those exceptions and which one of those
balancing tests may apply down the road. It depends on who
subpoenas the information, whether it is a civil or criminal
proceeding, the type of case it becomes, and who makes the
request. The balancing test itself is entirely unpredictable.
So even if this legislation were to become law tomorrow, that
reporter talking to that source could not give any assurance of
confidentiality.
The third and final question, I suppose, is this: Could I
do any better? Because it is easy to criticize. It is certainly
harder to offer solutions. And so I will offer just in passing
two possible ways that I think you could have a more definite,
more certain piece of legislation that would go to where the
problems actually are.
One possibility is to exempt entirely any disclosures that
are in and of themselves illegal: leaks of classified
information, leaks of grand jury information, leaks of wiretap
information, leaks of tax return information--all of which
would violate and clearly violate Federal law. Simply make them
outside the realm of the privilege.
I have got a different proposal, but I see my time is up,
so if there is a question, I will answer about that proposal as
well.
[The prepared statement of Mr. Clymer appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Clymer.
We now turn to Mr. Victor Schwartz, partner in the
Washington firm Shook, Hardy & Bacon, where he chairs the
firm's Public Policy Group; former Dean of the University of
Cincinnati College of Law; serves as general counsel to the
American Tort Reform Association, and had previously chaired
the Department of Commerce's Interagency Task Force on
Insurance and Accident Compensation; a graduate of Boston
University and Columbia Law School.
Thank you for again appearing as a witness before this
Committee, Mr. Schwartz, and the floor is yours.
STATEMENT OF VICTOR E. SCHWARTZ, PARTNER, SHOOK, HARDY & BACON
LLP, WASHINGTON, D.C.
Mr. Schwartz. Thank you, Mr. Chairman and Senator Kyl. It
is a privilege to be here today, especially on this panel. The
National Law Journal called me the other week and said there
are four lawyers in this town that charge more per hour than I
do, and two of them are on this panel.
[Laughter.]
Mr. Schwartz. So I thought that is definitely an honor.
Chairman Specter. Is there some aspersion on the other
panelist?
Mr. Schwartz. No. I am looking up to them, and I am sure
the professor would be in the same league.
I have the privilege of testifying on behalf of NAM, which
is the largest industrial trade association in the country, and
we would submit a letter for the record, which includes other
associations that generally concur in my thoughts today. And,
Mr. Chairman, I know that you and your staff have worked hard
to create a fair and balanced bill on the subject of the
reporter privilege. But the purpose is to guarantee the free
flow of information to the public through a free and active
check on Government. And you emphasized this in your opening
remarks--Government and the media.
There has and will be serious debate about that, but my
purpose today is outside of the perimeter of that debate. I
would like to talk about how the bill, perhaps inadvertently,
affects private litigation. The bill interfaces with the law of
evidence, and I did teach that for over 15 years. And my first
article was about the Federal Rules of Evidence, and it had a
very interesting history that is relevant here today.
When the Federal Rules of Evidence were sent up to the
Congress, they did something that is almost unique in the
history of this body. They struck the part that dealt with
privileges, and the Senate Judiciary Committee was clear that
this is a topic in private litigation that should be left to
the Judiciary. The Committee report said, ``Our actions today
in rejecting having specific privileges in private litigation
outline should be understood as reflecting the view that a
privilege based on confidential relationship and other
privileges should be determined on a case-by-case basis.'' And
they set forth a general rule, 501, that all lawyers who
practice in the Federal courts are familiar with. In essence,
the House Judiciary Committee Chair said the same exact thing.
Congress's judgment I think was correct, especially in the
context of private litigation, and you know that virtually the
entire Rules of Evidence, Mr. Chairman, are based on finding
the truth--the hearsay rule, evidence dealing with experts.
There is only one area where the Federal rules put something at
a higher value than truth, and that is privilege. And in
private litigation, this is high-stakes poker and requires
careful individual consideration in the private litigation
context.
In that regard, I think the bill is overly broad because
its shield would rise up against all leaks--and others have
discussed this--whether they are legitimate or illegal. For
example, leaking a trade secret or leaking something protected
under HIPAA would be given the same protection as a
whistleblower, which should be protected.
The Free Flow of Information Act could provide free flow of
information that should not really flow--trade secrets, health
files, and other areas of privacy. There should be no safe
harbor for areas where the source has violated law.
We just saw recently there was a leak where somebody who
worked for Coca-Cola gave information over to Pepsi-Cola.
Pepsi-Cola did the honorable thing and returned it. But if this
information had been given to a reporter, a blogger, boom,
everybody could go out and make Coke in their garage, and that
would not be a very good outcome.
People who are breaking the law should not be protected by
simply handing information over to a reporter in the private
litigation context. The people who have done this should be
prosecuted, and impediments should not be put in the way.
It is also true in private litigation. As the Chairman, who
has extensive experience in litigation, knows, discovery is a
difficult process, Senator Kyl, and you know this, too. If when
I am handing over documents in discovery I realize that this
material can be put in the hands of a reporter and these is no
way to get any information about the illegal leaker, that is
going to slow down the discovery even more.
The great writers on evidence who I studied--and I am sure
the Chairman remembers--Charles McCormick, who was also
Secretary of the Navy; a great scholar on evidence, John
Wigmore--all agree that privileges in the private context
should not be absolute, these include priest-penitent, lawyer-
client, or reporter. This system in the private litigation area
has worked well. We have entrusted the judges. They have not
always done it perfectly, but they know how to do it.
I thank you for the time you have given me today.
[The prepared statement of Mr. Schwartz appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Schwartz.
Without objection, the statement from Senator Kohl will be
made a part of the record.
And we now turn to our final witness on the panel, Mr.
Bruce Baird, senior partner in the Washington law office of
Covington & Burling, where he specializes in white-collar
defense and securities information. Mr. Baird had been an
Assistant U.S. Attorney in Manhattan, handled high-profile,
complex cases involving Michael Milken, Drexel Burnham Lambert;
and from 1981 to 1986, he was the lead prosecutor heading a 5-
year investigation into the Colombo crime family; bachelor's
degree from Cornell and a law degree from the New York
University School of Law.
Mr. Baird, we appreciate your being with us and look
forward to your testimony.
STATEMENT OF BRUCE A. BAIRD, PARTNER, COVINGTON & BURLING LLP,
WASHINGTON, D.C.
Mr. Baird. Thank you, Mr. Chairman and Senator Kyl. I will
be brief.
I think from a prosecutor's perspective and from a defense
perspective, I have some experience on both sides. I have had
some high-profile cases in which I would have given my right
arm to be able to go to reporters and say, ``Give me your
sources.'' But it is a value that I think we all share that
resulted in the Department of Justice guidelines and that
results in prosecutors not being able to do that unless there
is a really good reason.
There was a New York Post reporter who had the Colombo
organized crime family dead to rights before we did, but I
could not get that information. There were Wall Street Journal
reporters who knew more about Michael Milken than we did, and
we could not get that information. But we managed to prosecute
those cases.
There are, as we all know, many investigative techniques.
Subpoenaing reporters for their sources is not the only way to
prosecute a case. There has been some talk here about, you
know, the requirement to avoid shielding people from these
prosecutions or shielding people from the clutches of the
Government. That does not happen just because you do not get
information from a source. You undertake other investigative
techniques.
So from a prosecutor's perspective, I think the bill does
no more than codify the Department of Justice's existing
policy. The one difference, as, Mr. Chairman, you remarked and
as the Deputy Attorney General remarks, is that judges are now
involved. That is true. Judges are involved, but, of course,
judges are involved in many respects in this situation and in
many others. We rely on judges to make very complicated
decisions about balancing tests. We require that in many areas
of law. We require it every day. Judges decide whether
prejudice outweighs probative value, a very subjective test.
I recall a judge who taught himself patent law and
electrical engineering to decide a case, wrote a 300-page
opinion full of circuit diagrams.
That is the sort of thing that this Committee knows better
than anyone else. You put judges on the bench who have that
ability, and I do not really understand the argument that
judges are incapable of deciding these questions.
So I think from a prosecutor's perspective, this bill will
help. It will make the law more uniform. It will make
prosecutors more able in an appropriate case to go to a court
and seek a reporter's sources, and the judge will have
something to hang his hat on, will have a bill, will have text,
will not be left with vague First Amendment arguments about
which people differ.
From the defense perspective, the bill is also an
improvement. There is explicit recognition of a criminal
defendant's potential need for this information and for the
needs of a party in civil or administrative litigation. And, of
course, it is applicable to all Federal agencies, as, Mr.
Chairman, you remarked, and not just the Department of Justice.
So, in the end, I do not think this is an issue that should
divide the Department of Justice and other prosecutors from
defense counsel. Information is not always desired by the same
people. As Mr. Schwartz said, sometimes private litigants want
the information. Sometimes the Department of Justice wants the
information. There should be a test, there should be judges
administering the test, and I think this bill draws a line
which is appropriate. You know, as was said, you cannot make
everyone happy. There can be interpretation, much easier with a
statute than with a constitutional bill. And so I think this
bill in the end will improve the state of the law and will give
both sides, both people who want the information in an
appropriate case and the press, which does not want this
information revealed in an inappropriate case, standards to go
on.
I want to particularly remark with respect to the Deputy
Attorney General's statement that the Department of Justice has
a great record in the last 15 years, I think they do. But my
memory goes back 30, and there was a time when Attorneys
General and Deputy Attorneys General thought they knew better
than anyone else what the law should be and were indicted and
cast out of office for it.
Having judges decide these questions is something that goes
deep in the fabric of this country and is the most appropriate
way to deal with the issue.
Thank you.
[The prepared statement of Mr. Baird appears as a
submission for the record.]
Chairman Specter. Thank you, Mr. Baird.
Mr. Baird, you have had extensive experience in the
Department of Justice, but not, at least according to the
resume I have seen here, in the national security field. Do you
think your observations that the Department of Justice would
not be prejudiced apply as well in the national security field?
Mr. Baird. Well, you are right, Mr. Chairman. I am not an
expert in the national security field. I see, though, that the
bill has exceptions in the national security area, and the only
thing I understood the Department of Justice to say in response
is that they did not want judges to make the decisions; they
wanted to make the decisions themselves. And it seems to me
judges have made decisions, as I think Mr. Olson mentioned, in
the FISA context, in many other national security-related
contexts. It has not been my experience, either on the defense
or the prosecution side, that judges are incapable of making
hard decisions using balancing tests. Quite the reverse.
Chairman Specter. Mr. Schwartz, there are some 49 States
and the District of Columbia which afford some privilege to
reporters. Are the interests of your clients prejudiced in
those States?
Mr. Schwartz. In some of them. There was a situation in
California--and it is not a client of mine--where a company was
told that they ought to polygraph their employees as an
alternative source to seeking things from a reporter. They were
not a client. And I do not think that is a very reasonable
rule. It is an overly broad privilege.
Most of the rules are fine. They have three factors: Is it
relevant--
Chairman Specter. Well, you have to cope with reporters'
privilege almost everywhere in the United States. Are you
getting along?
Mr. Schwartz. Well, things would be more difficult if this
was added to the mix because States might copy it. They tend to
do that. And there is something in the mix of this standard
that I really have not seen elsewhere, and it is beyond the
three normal parts. You usually have relevancy. Is it relevant?
Is there a reasonable alternative source? If there is, you are
supposed to seek it. And how central is it to the case?
But in addition here, in the private sector area there is a
Department of Justice guideline which has really nothing to do
with private litigation where a judge has to weigh public
interest against public interest. And we do not face that
anywhere, as far as I know, and that is one of the reasons I am
here today. It is an additional barrier that is just not in
standard evidence law or anyplace. It may be relevant and
important with governmental things, the things that other
witnesses are testifying about today. But it certainly not in
the private sector--
Chairman Specter. Mr. Schwartz, I am going to have to move
on.
Mr. Schwartz. OK, sure.
Chairman Specter. Professor Clymer, do you think the
incarceration of Judith Miller was appropriate?
Mr. Clymer. I do not know enough facts to answer that
question, but what I would say about this is that I think that
is the wrong question to ask. And the reason I think it is the
wrong question to ask is because the issue before this body is
not should we give special privileges to reporters so that they
can disobey lawful court orders. The question we should ask is:
Will this piece of legislation increase the flow of information
to the public through the news media?
If we are going to privilege reporters, it is not because
we are concerned about someone, a professional like Judith
Miller, having to go to jail. It is because we are concerned
whether that is going to have an effect on the flow of
information.
So although I can certainly sympathize with Judith Miller,
a professional trying to do her job, having to go to jail, she
went to jail for failing to comply with a lawful court order.
And the real question is: If we change the law to allow her not
to go to jail, not have to comply with a court order, is that
going to increase the flow of information to the public? And I
think the answer ultimately is no.
Chairman Specter. Well, up until your answer, I thought it
was a pretty good question to ask.
[Laughter.]
Chairman Specter. But maybe I am wrong.
Mr. Olson, on a matter of oversight, would this bill have
resulted in a different result in the Judith Miller
incarceration?
Mr. Olson. I think it may have, because as we are learning
now through reports in the newspapers with respect to when that
information was given to journalists and the memory of the
journalists seemed to all differ from one another, and when the
special prosecutor or whatever name is given to Mr.--
Chairman Specter. My time is almost up, and I want to put
one more question to you. You have had extensive experience in
the Department of Justice, and I have asked the Deputy Attorney
General to respond to that question by somebody who was not
recused. What are the parameters for discharging a special
prosecutor? Whereas, in this case we have it fairly well
established that there was no national security issue involved,
and it has even been suggested that there was no crime
involved, we have had some independent counsel cases which have
gone on for a decade. What are the parameters for evaluating
the special prosecutor's conduct, say, in the Miller matter and
in the investigation generally, which has led to the
prosecution of Lewis Libby?
Mr. Olson. Well, that would be a very long answer. I think
that if you do that oversight, you are going--
Chairman Specter. There is no time limit on the answer,
just on the question.
Mr. Olson. If you do that oversight, you are going--in the
first place, this appointment was not under the independent
counsel statute. This appointment of Mr. Fitzgerald was under
the inherent authority by the Attorney General, which is set
forth in a statute to delegate any of the functions in the
Department of Justice to anybody that the Attorney General
wants to do. So the Attorney General here has the power to
dismiss and remove this special prosecutor at his pleasure.
Chairman Specter. Would cause be required?
Mr. Olson. Not as I understand the decision by the Attorney
General to do this delegation in the first place. I think it is
under a statute, 28 U.S.C. 505 or something like that, that
allows the Attorney General to delegate any of the authority in
the Department of Justice to any other person in the Department
of Justice. So I do not think cause would be required. It is a
political problem that, you know, if there is going to be a
dismissal.
But to get back to your question, it would seem to me you
might start with the concept of when the appointment was made
and how much collectively was known with respect to what was
the nature of the crime. I think you asked in your question
something about whether or not the remainder of the prosecution
at that interval was necessary to determine whether or not
national security was implicated, whether a covert agent
fitting the standard of that particular statute was involved,
and whether--and you made the point in your earlier question.
It is one thing to subpoena reporters with respect to national
security concerns. It is another when it is the whole range of
other crimes in the Federal statutes. And those are things that
this statute would address by requiring some concentration on
the need for it, the importance of the information from the
reporter, whether the need for the information from the
reporter would outweigh the public interest that is embodied in
the First Amendment and so forth. So that would be a relevant
question, but I think that there would be a lot of other things
that you would want to ask as well.
Chairman Specter. Thank you very much, Mr. Olson.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman.
Mr. Olson, let me ask you, would you agree or stipulate
that Paul McNulty is a knowledgeable and honest and expert
public servant on the matters to which he testified today?
Mr. Olson. Absolutely. I have the greatest respect for Paul
McNulty.
Senator Kyl. I knew you did and that you would. It seems to
me there is a direct contradiction between what you say and
what he says. In your statement you say, ``The Act does not
compromise national security or burden law enforcement
efforts.'' In view of his testimony to the contrary, can you
really make that broad a statement?
Mr. Olson. Well, I believe that a lot of attention has been
given to that issue, and I think you pointed this out in your
questions--or maybe Senator Schumer did, between the earlier
version of this statute, which was the subject of testimony
last year, and there were questions--I was here for that
testimony and--
Senator Kyl. Forget about that. My earlier questions to him
were all from the current version of the statute.
Mr. Olson. Yes.
Senator Kyl. Which elicited a response from him that there
were indeed problems.
Mr. Olson. I respectfully disagree. I think that the issues
have been addressed in Section 9. What I think Mr. McNulty did
not acknowledge is that there is going to be judicial analysis
of this process, anyway. The Department standards do not
require the Department to go to a judge. But what is going to
happen is the reporter is going to decline to respond to the
subpoena. He is going to make a motion to quash. There is a
going to be a motion before a judge to hold the reporter in
contempt for not responding to the subpoena, and it is going to
be before a judge. So a judge is going to be considering these
questions: whether there is a common law privilege, whether
there are First Amendment implications. And the Department is
going to say it is a national security case and it is very
important.
And so I think Mr. McNulty is incorrect, respectfully,
because I think these matters are going to be before a judge
anyway. And judges do consider national security considerations
when they deal with search warrants, under Title III and FISA.
Senator Kyl. You know our time constraints here.
Mr. Olson. Yes.
Senator Kyl. This statute, I think you would have to
concede, would make it more difficult, though, given the fact
that it statutorily establishes a privilege beyond the current
common law privilege, or I gather there is no need for it.
Mr. Olson. Well, I am not sure that it does. As the
Chairman pointed out, there are four or five circuits that
recognize some level of common law privilege. There are several
circuits that do not.
Senator Kyl. So you are not sure that this goes beyond the
currently recognized privilege.
Mr. Olson. Well, the problem, as I pointed out, is there is
a hodgepodge and it is not clear what the standards are. The
Supreme Court ultimately would have the power to determine that
there were a common law privilege. We urged the Supreme Court
to take the case in--the Wen Ho Lee case on behalf of a
reporter, Pierre Thomas. It may be that the Supreme Court might
recognize a common law privilege, and then the question is:
Should it all be decided by judges, or should the Congress of
the United States exercise its judgment as to the standards?
And I think the case is strong that Congress should--
Senator Kyl. Let me ask you, Professor Clymer, the third or
fourth point that you made, Professor, was that there are so
many--and it follows directly what Mr. Olson just said. The
legislation is subject to so many tests and exceptions that a
reporter cannot guarantee the privilege to the source at the
time he makes it.
Would you expand on that a little bit and explain why in
your view that renders this a difficult privilege to implement?
Mr. Clymer. The problem is this: The benefits from the
privilege have to occur when the conversation occurs between
the reporter and the source, because if the objective of the
legislation is to increase the free flow of information, that
is when the information flows. And what the source, if he is
reluctant to give the information, wants is a guarantee or an
assurance that his identity will remain confidential.
Under present law, clearly, you cannot make that assurance.
But under this legislation, you cannot make that assurance
either because you do not know at the time you have that
conversation which exception may apply, who is going to ask for
the information, whether it will be in Federal or State court,
or what a judge is going to do under one of these open-ended,
unstructured balancing tests that are in this legislation.
And, by the way, I think it is worth pointing out that
these balancing tests do not appear in the Federal regulations
that DOJ follows. They do not appear in the standard common law
tests. These balancing tests that are in this legislation are,
to my knowledge, brand new. I have not seen them elsewhere.
And so this creates another layer of uncertainty so the
reporter cannot give the sorts of assurances. So what we get
from this legislation is all the costs--additional litigation,
loss of the truth--without the benefits because the reporter
still cannot give certain guarantees of confidentiality.
Senator Kyl. Thank you very much. With no more time here, I
will turn it back.
Chairman Specter. Do you want to proceed with another
question or two, Senator?
Senator Kyl. Well, why don't I do this. I had two or three
questions of Mr. Olson, one of Mr. Schwartz, and I think one
more of Mr. Clymer. So what I will do is submit those for the
record.
Chairman Specter. OK. Thank you very much, Senator Kyl.
Senator Brownback?
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator Brownback. Thank you, Mr. Chairman. I apologize for
not being here at the outset or hearing the testimony of the
witnesses. I was in another hearing and presiding earlier.
Thank you, though, for holding the hearing, and it is an
important hearing.
I want to step back on this because there seems to me to be
a troubling confluence of things that are happening right now,
and we are trying to address the things that--a lot of the
things that I am concerned about do not seem like we are
addressing here. We have got these security leaks that are
taking place, and in my estimation, in this war on terrorism
probably our most valuable tool is information, is our ability
to gather information. And we need this in this war on
terrorism.
I used to chair the Immigration Subcommittee, and one of
the things that shocked me was the number of legal entries we
have got a year into the United States. We have nearly 250
million legal entries a year into the United States. And
somebody--probably several people in that group seek to do us
harm. But it is not like finding a needle in a haystack. This
is a needle in a hay field. We have got to be able to really
get some information, lawfully, legally, and in ways that the
American public support it. And yet what we are seeing is more
national security leaks taking place.
And then recently--and I do not know that this ties into
it, but it really strikes me as odd that in the Judith Miller
case we have people being pursued for some period of time, her
going to jail, and then somebody here 3 years later holds his
hand up and says, ``Well, OK, yes, I am the one that did
this.'' And I know the gentleman that said that, and this just
really strikes me as odd taking place at this point in time.
I appreciate the panelists and their thoughtfulness in
putting forward their testimony, but my question to you is:
Given that atmosphere and our need to maintain security in the
United States today in a lawful fashion, a fashion that the
public supports, are there things that we should be doing to
further penalize leakers of national security information, to
say, you know, OK, reporters should be able to have access to
legitimate knowledge? But if somebody is putting out national
security information, there needs to be a legitimate penalty
with this, a significant penalty with this, if this is wrong to
put out.
This is a learned panel, and this is not what you came here
to testify about, but I am sure you have thought about this
angle of it as well. Would anybody care to comment about that?
Mr. Clymer. Can I make two observations, Senator?
Senator Brownback. Yes.
Mr. Clymer. One is that I think this legislation, at least
in some cases, will do exactly the opposite of what you
suggest. In other words, it will immunize people who make those
sorts of leaks, because it will require, in order to do an
investigation of those people, that the Department of Justice
has to satisfy certain requirements that a judge may determine
for one reason or another are not satisfied, thereby preventing
access to information that will result in prosecution of that
sort of person. So I guess that is the first observation to
make because I think that in some respects this legislation
goes exactly in the opposite direction of what you are talking
about.
The second observation is I think your concerns are
legitimate, but I think they should be expanded. There are
leaks of nonclassified information that could be extremely
harmful to law enforcement in a variety of ways that are not as
strongly addressed in this legislation as leaks of classified
information. And it seems to me that what would be a better
approach would be to have any privilege not applicable
whatsoever if the disclosure of the information itself
constitutes a Federal crime, be it classified information,
grand jury information, or other sorts of information the
disclosure of which violates Federal criminal law.
Senator Brownback. And the disclosure of which by the
individual leaking and the newspaper entity that discloses it?
Mr. Clymer. Well, I do not think you have to reach the
conclusion that the newspaper itself is engaged in criminal
activity, as long as the disclosure to the newspaper is a
violation of the law. I think Congress has made determination
that that is something that is very serious and we should not
effectively immunize people who do that by foreclosing any
effective investigation of the crime.
Mr. Baird. Senator, I agree with the last statement on
penalties. You could create legislation with more penalties.
But I disagree with the statement that this legislation
immunizes leakers. I think as a former prosecutor, there are
many ways to investigate crime, and the first resort is never
to go to a reporter and ask for sources. These are crimes--I
agree with you, Senator, that these are serious crimes and they
should be investigated, and they can be investigated. There are
many ways to investigate them beyond asking a reporter for his
sources.
Senator Brownback. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Brownback.
Senator Kyl has asked that I include in the record a letter
dated June 21, 2006, from Bruce Josten of the Chamber of
Commerce to me and a letter from a group of trade associations
dated today, September 20th, to Senator Leahy and myself, and
they will be included in the record.
We thank you very much for coming in, gentlemen. Staff has
advised me, on an unrelated matter, that Mr. Schwartz has a
good imitation of me.
Mr. Schwartz. [Imitating Chairman Specter] I don't think I
can do that here, Senator. That would just be wrong.
Chairman Specter. Well, I have to agree with you about
that.
[Laughter.]
Chairman Specter. We are concluded.
[Whereupon, at 11:02 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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