Last October, the House of Representatives passed the sorely-needed Free Flow of Information Act (a "reporter shield law") for journalists pressured to reveal confidential sources. The version that cleared the Senate Judiciary Committee, however, has languished without a floor vote. Two weeks ago, USA Today reporter Toni locy was found in contempt of court for refusing to name her sources for her stories on anthrax "person of interest" Steven Hatfill. While it makes me squeamish that some reporters who will benefit from such a law are ones who have ruined innocent people (e.g., Robert Novak and, arguably, Locy), I have come to the conclusion that on blanace this is outwighed by the need to protect the sacrosanct relationship between reporters and their sources in order to maintain the free flow of information. I offer up my (in the words of Douglas McCollam) "creepy" case as an argument in favor of such a law. And I also offer a partial list of stories that would not have been brought to you without confidential sources: Watergate, Bush's warrantless wiretapping, the Abu Ghraib scandal, the torture memos . . .
I am the whistleblower in the case of "American Taliban" John Walker Lindh. I anonymously leaked e-mails to Newsweek evidencing that the Justice Department committed an ethics violation in its interrogation of Lindh, and then tried to cover it up. The Justice Department went after me with both barrels--placing me under criminal investigation, referring me to the state bars in which I'm licensed as an attorney, and putting me on the "No-Fly" List, among other acts of retaliation.
I tried to find a lawyer for protection from the Justice Department's pretextual "leak investigation." The first law firm I approached told me they could not represent me--because they already represented Newsweek on the same issue--namely, the government going after a reporter to reveal a confidential source.
It has been documented that the Justice Department went after the journalist who published my e-mails, Michael Isikoff. Douglas McCollam wrote an article for the Columbia Journalism Review on my situation, appropriately titled, "Who's Tracking Your Calls? And How Far Will the Department Go to Burn a Leaker?":
The government got a record of Isikoff's calls to an important source on an important story, without either party's knowing about it. It's a quick lesson on how far an irate government may go to burn your source. So remember, even on a local line, let's be careful out there.
Did the Justice Department obtain an order for a pen register, which identifies all outgoing numbers called by a given telephone, on Isikoff? Could it have secured an order for a trap-and-trace device, which identifies the phone numbers of incoming callers, on me?
Never mind. I forgot that under the government's secret surveillance program, it doesn't bother to get orders for either. . . and forget that the post-Watergate regulations adopted by the Justice Department established a clear procedure for subpoenaing a journalist's phone records--a protocol that has gone the way of our civil liberties. . .
Even though the mainstream media has sometimes done a less than lackluster job exposing the Government's crimes under Bush, it is still, for better or worse, an important government watchdog. We therefore need to protect reporters--including those in the blogosphere--from having to "out" their confidential sources. I can tell you first hand that whistleblower protection laws are not protecting the truth-tellers. Without a federal reporter shield law, the public's right to know will be decreased, further than it already has been courtesy of over-classification, "lost" government e-mails, the bogus state-secrets privilege, closed-door testimony, etc.