WASHINGTON – Skeptical senators, concerned over the jailing of New York Times reporter Judith Miller (search), 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 (search) said Wednesday as the Judiciary Committee he heads called Miller and others to testify on a proposed bill that would allow reporters to keep the identity of their sources secret.
The jailing of Miller for refusing to discuss her sources with federal prosecutors investigating the disclosure of undercover CIA agent 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 (search), 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 information.
"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 well."
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 this statement."
Miller told Specter that after her jailing the Cleveland Plain-Dealer decided against going forward with two stories to avoid a similar predicament.
"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."
Sen. Dianne Feinstein (search), 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. Wednesday'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 policies.
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 (search), had released her from her obligation to keep his name secret.
After the hearing, Miller said she wouldn't have left jail without also getting a commitment from prosecutors not to go on "a fishing expedition into other unrelated subjects and other non-Plame-related sources."
Other than Libby, "there were no other main sources for me on Valerie Plame. There weren't any sources that I can remember, that I know of," Miller said. She added that she never wrote about Plame because "it wasn't that important to me. I was focused on the main question: Was our WMD itnelligence slanted?"
Miller told the committee 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 news media members from identifying sources except where "necessary to prevent imminent and actual harm to national security."
Rosenberg 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 classified information."
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