WASHINGTON — Skeptical senators, concerned over the jailing of New York
Times reporter Judith Miller, grilled a Justice Department representative
who testified that government procedures for getting information from reporters
had worked well for 33 years and didn't need to be altered.
"Here you have a reporter in jail for 85 days and millions of Americans
wonder why? I'm one of those," Sen. Arlen Specter said today as the Judiciary
Committee he heads called Miller and others to testify on a proposed bill —
called a shield law — that would allow reporters to keep the identity of their
The jailing of Miller for refusing to discuss her sources with federal
prosecutors investigating the disclosure of CIA officer Valerie Plame's identity
"has had an obvious chilling effect on other reporters" around the country, said
Specter, a Pennsylvania Republican.
Representing the Justice Department, Chuck Rosenberg, a U.S. attorney in
Texas, declined to discuss specifics of Miller's case but said, "We should not
enter this debate believing that the First Amendment is under assault by the
Department of Justice. Manifestly it is not."
Rosenberg said that since 1991 only 12 of 243 subpoenas issued under Justice
Department guidelines to news media called for confidential-source
"We seek information about confidential sources from reporters only when it
really, really matters," Rosenberg said. "What is broken about the way we are
handling subpoenas to the media? ... I don't see anything in our work that
justifies discarding 33 years of careful practice that has served the nation
On her way into the hearing, Miller offered a different view: "We need a
federal shield law. That's why I'm here. I went through a lot to be able to make
Miller told Specter that after her jailing The (Cleveland) Plain Dealer
decided against going forward with two stories to avoid a similar predicament.
The newspaper later published one of the stories.
"I believe we need a statute," Specter said, because that would give judges
responsibility for balancing the need for confidentiality against the demands of
national security in such cases.
Former U.S. attorney Joseph DiGenova suggested the committee enact the
existing Justice guidelines into law, so reporters could get courts to enforce
them because "notwithstanding what they're saying today, they (Justice
officials) don't always do that" (follow the guidelines).
Sen. Dianne Feinstein, D-Calif., asked Rosenberg if the department would
support that, but Rosenberg said even that would be a bad idea because court
appeals could delay action at times "when we need to move fast."
"Is that your argument — to have no bill at all?" Feinstein asked.
"Yes," Rosenberg replied.
In her testimony, Miller acknowledged her own stories suggesting Iraq had
weapons of mass destruction were flawed by sources with wrong information. But
Miller argued that "even flawed reporters should not be jailed for protecting
even flawed sources."
Many sources with accurate information needed by the public will provide it
only to reporters who promise confidentiality even before the reporter can
assess the information, she claimed.
Justice's Rosenberg said in testimony submitted for the record that the bill
as drafted would seriously impede the government's ability to "enforce the law,
fight terrorism and protect the national security."
Miller's fight has given new life to the federal shield idea that Congress
has ignored for decades. Two Indiana Republicans, Rep. Mike Pence and Sen.
Richard Lugar, introduced the Free Flow of Information Act in January. Today's
hearing was the
second since Miller was locked up.
Plame's name was exposed by columnist Robert Novak in July 2003, eight days
after her husband, former ambassador Joseph Wilson, wrote in a Times
opinion piece that the Bush administration had manipulated intelligence about
Iraqi weapons programs to justify going to war. Wilson and others have argued
Plame was exposed to intimidate officials critical of President Bush's
Miller, 57, never wrote about Plame but was jailed for contempt of court for
not being willing to testify about her sources. She was freed Sept. 29 after
saying Vice President Dick Cheney's chief of staff, I. Lewis "Scooter" Libby,
had released her from her obligation to keep his name secret.
Miller noted that some have said her source "did not deserve confidentiality
because his motives were not pure." But she argued that while journalists should
try to learn leakers' motives, "what counts far more ... is the truth and
significance of what they are saying."
"Those who need anonymity are not only the poor and the powerless, those
whose lives or jobs might be in jeopardy if they speak up publicly, but even the
powerful," Miller said. "All are entitled to anonymity if they are telling the
truth and have something of importance to say to the American people."
The bill would replace Justice Department guidelines designed to make news
media subpoenas a tool of last resort. It would ban compelling journalists to
identify sources except where "necessary to prevent imminent and actual harm to
Rosenberg said the Justice Department had "a fundamental objection to the
principle of a reporter's privilege as an exception to every citizen's duty to
give testimony in a federal criminal proceeding."
He said the bill's standard would "prevent the government from obtaining
potentially life-saving source information in a murder-for-hire investigation"
and "preclude subpoenaing source information in many cases involving leaks of
Yesterday, Miller told a journalists' convention in Las Vegas: "I did not go
to jail to protect wrongdoing. I did not go to jail to get a large book contract
or to martyr myself. Anyone who thinks I would spend 85 days in jail as a canny
career move knows nothing about jail and nothing about me."
A leading House conservative, Pence said conservatives had scorned him for
"trying to create new rights for reporters." But the former radio talk-show host
told a broadcasters lunch yesterday that his bill "is not about protecting
reporters' rights. It's about protecting the public's right to know."
"As a conservative, I believe the only check on government in real time is a