9/11 and the Journalist-Source Privilege

By Geoffrey R. Stone, a constitutional law professor at the University of Chicago, and chair of the American Constitution Society’s Board of Directors. Professor Stone will be a panelist during an ACS Symposium this Thursday on legal policy shifts in the ten years since 9/11. Register for the symposium here.

War inevitably intensifies the tension between individual liberty and national security. But there are wise and unwise ways to strike the appropriate balance. In the years after 9/11, the Bush administration embraced a series of policies — including torture, surveillance of private communications, clandestine detention of American citizens, and secret prisons in Eastern Europe — that undermined the fundamental American values of individual dignity, personal privacy, and due process of law.

In my view, however, the most dangerous policy of the Bush administration was its attempt to hide its decisions from the American public. In an effort to evade the constraints of separation of powers, judicial review, checks and balances, and democratic accountability, the Bush administration systematically promulgated its policies in secret, denied information to Congress, abused the classification process, narrowly interpreted the Freedom of Information Act, punished government whistleblowers, jailed journalists for refusing to disclose their confidential sources, threatened to prosecute the press for revealing the administration’s secret programs, and broadly invoked executive immunity and the state secrets doctrine to prevent both Congress and the courts from evaluating the lawfulness of its programs.

By shielding its decisions from legal, congressional, and public scrutiny, the Bush administration undermined the single most central premise of a self-governing society: it is the citizens who must evaluate the judgments, policies, and programs of their representatives. As James Madison observed, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”

There were of course many possible legal reforms that might have addressed the excesses of the Bush administration. Among those was the recognition of a federal journalist-source privilege that would have enabled journalists to shield their confidential sources in the absence of overriding public necessity. At present, 49 states and the District of Columbia have such a privilege, but the United States does not. The events since 9/11, including most dramatically the jailing of New York Times reporter Valerie Plame, made clear the need for Congress to create a federal statutory journalist-source privilege.

Proposed legislation to that effect has been pending in Congress for much of the time since 9/11. The Free Flow of Information Act, which is currently pending, would enable journalists to protect the confidentiality of their sources unless the government could prove that disclosure of the protected information is necessary to prevent significant harm to the national security that would “outweigh the public interest in gathering or disseminating news or information.”

Yet Congress has failed to act. It is especially disappointing that President Obama has not made this a priority. Senator Obama supported the Free Flow of Information Act, but later shifted gears when he assumed the presidency. In 2007, he was one of the cosponsors of the original Senate bill. But in 2009, he objected to the scope of the privilege envisioned by the bill and requested that Senate require judges to defer to executive branch judgments on matters of national security, rather than make their own independent judgments on such issues. Former Senator Arlen Specter (D-Pa.), another of the bill’s sponsors, rightly called the President’s changes “totally unacceptable.” Although the bill passed in the House, it is still languishing before the Senate Judiciary Committee. Even more troubling, the Obama administration has attempted to compel more journalists to disclose their confidential sources than any other presidential administration in American history.

The failure of the United States government in the years since 9/11 to recognize a journalist-source privilege undermines the vitality of informed self-governance. Viewed as part of a larger set of issues, including overclassification and the state secrets doctrine, one cannot escape the conclusion that the cloak of secrecy imposed by the government weakens our democratic institutions and renders our nation less secure in the long run.