Republican senators blocked approval of the Free Flow of Information Act in a vote in the senate on 30 July. The bill, which was passed by the senate judiciary committee by 15 to 4 last October and was overwhelmingly adopted two weeks later by the House of Representatives by 398 of the 411 voters, would give federal protection for the confidentiality of journalists’ sources.
The bill’s supporters said it might go before the senate again in September although changes would have to be made within a month so that a new version is ready for when senators return from their summer break. Otherwise, the bill will have to await the next legislature, which begins in January 2009.
Reporters Without Borders deplores the delay and reiterates its desire to see the Free Flow of Information Act approved as soon as possible.
24.08.08 - US District Judge Rules in Favor of Reporter’s Right to Protect Confidential Sources
US District Judge Cormac J. Carney ruled in favor of Washington Times national security reporter Bill Gertz on Thursday, supporting his right to protect confidential sources. As the Washington Times reports, the Judge said Gertz could not be forced to answer questions concerning one of his articles because his First Amendment rights outweighed the government’s need to identify his sources.
The issue at hand was Gertz’s May 16, 2o06 article on a Chinese espionage case in which he cites unnamed “senior Justice Department officials” as the sources of information about criminal charges against Chi Mak, accused and convicted of leaking military information to the Chinese government. Judge Carney had presided over the case and ordered an investigation to see if federal employees had leaked information from a grand jury investigation, a federal crime.
Judge Carney refused the federal prosecutor’s request for time to appeal the ruling. Charles Leeper, Gertz’s lawyer, said that today’s ruling, while only applicable in the Judge’s particular district, has considerable weight, but that the fight may not be over, as the Justice Department has said it will still issue a grand jury subpoena to Gertz for testimony, despite the Judge’s ruling.
Gertz said after the ruling that, “The identity of these confidential news sources must be protected if our press freedoms, fundamental to the effective functioning of our democratic system, are to endure. Efforts by government to compel reporters to disclose news sources must be resisted."
Reporters Without Borders celebrates the Judge’s ruling, but urges the Justice Department to refrain from issuing a subpoena to Mr. Gertz and asks the Senate to pass as soon as possible the Free Flow of Information Act that would ensure the protection of reporters’ sources at the federal level.
18.07 - Judge uses roundabout way to get at journalist’s sources, ordering him to submit to questioning about his reporting
Reporters Without Borders is alarmed by California judge Cormac Carney’s 14 July decision ordering William Gertz, a national security reporter for the Washington Times, to appear in court next week for open-ended questioning about his reporting techniques in a case involving suspected espionage on behalf of China.
“Confidentiality of sources is essential to the news-gathering process,” Reporters Without Borders said. “The judge’s decision to have this reporter publicly interrogated about his methods puts him in an uncomfortable situation and takes no account of the difficulties journalists face in the course of their work. The order looks like a roundabout method to get at Gertz’s sources and poses a direct threat to the basis of investigative journalism.”
According to the report by The New York Sun, Judge Carney originally ordered Gertz to appear in court and reveal his sources for an article about the case in which he appeared to use confidential grand jury information. But lawyers for Gertz disputed this and managed to get the subpoena quashed.
Carney’s response was his decision to question Gertz about his reporting methods. He noted in his 14 July order that while Gertz may be unwilling to identify his sources, he should be prepared to testify on the newsworthiness of the case and why the confidentiality of sources was critical to his ability to engage in investigative reporting.
The judge’s determination has highlighted an apparent disagreement within the justice department as to whether Gertz should have been called to testify before another grand jury about his sources. Two justice department prosecutors had asked attorney general Michael B. Mukasey to authorize a subpoena for Gertz, but Mukasey refused.
Another prosecutor, Jay Bratt, then requested that next week’s hearing be postponed for two months. The government seems to have had trouble deciding whether or not prosecutors should take part in the questioning of Gertz and tried to delay the hearing until their internal differences can be resolved. Judge Carney refused to delay the hearing.
John Solomon, Gertz’s editor at the Washington Times, told Reporters Without Borders that, "We remain hopeful that the court will closely examine the merits of Bill’s motion to quash. That motion clearly demonstrates that forcing Bill to testify would be an enormous infringement of his First Amendment rights and would have a chilling effect on future government officials’ willingness to come forward and divulge the sort of national security concerns that Bill has made a career of exposing _ always to the benefit of the American people. Secondly, the motion raises compelling questions about whether the information Bill published amounts to a prohibited grand jury leak. The motion recounts how various courts of appeal have concluded that news reports predicting future action by a grand jury do not constitute violations. Similarly, the Justice Department itself has publicly taken that same position in recent cases. We believe the motion moots any need for Bill to testify. Furthermore, we hope all parties heed the will of the people as expressed by the current House of Representatives, which has overwhelming passed a reporters’ shield law that would prohibit the government and courts from violating a reporters’ confidentiality agreement with sources when there is no imminent danger."
Gertz has made a specialty of obtaining and publishing classified information over his long career as a journalist.