Prepared Statement of Deputy Attorney General Paul J.…

          Prepared Statement of Deputy Attorney General Paul J. McNulty
                  at the Senate Judiciary Committee Concerning
                         "Reporters' Privilege Legislation:
                 Preserving Effective Federal Law Enforcement"
                                September 20, 2006

                                    Washington, D.C.

Chairman Specter, Senator Leahy, and Members of the Committee, thank you for the
opportunity to appear today to discuss S. 2831, the "Free Flow of Information Act of
2006," and unauthorized disclosures of classified information by the media. While others
at the Department of Justice previously have testified on these matters, this is my first
opportunity to talk with you about them. The issues are weighty, and I commend the
careful attention you are giving them.

Let me begin with these facts and observations, upon which we should all agree. The
Department of Justice shoulders the important obligation of enforcing the law and
ensuring the public safety against foreign and domestic threats. We also are duty bound
to administer justice with fairness. Our work requires a constant balancing of interests.

A determination to commence prosecution requires a careful assessment of all facts and
circumstances. Our guidepost, as stated in the United States Attorneys' Manual, is
whether the "fundamental interests of society require the application of the criminal laws
to a particular set of circumstances," recognizing that any decision to bring charges
"entails profound consequences" for all affected persons. U.S. Attorneys' Manual §
9.27.001. In all instances, the Department's attorneys represent and must protect the
public's interest in the fair and balanced administration of justice.

How we conduct investigations is no less important. We owe crime victims, those
suspected of committing crimes, and the public the duty of conducting diligent and
thorough investigations. Our search is for the truth, and our record shows that our
approach has reflected measured and careful judgments. Overreaching does not serve
justice, and the Department's men and women understand and respect that principle.

Our measured approach manifests itself in the daily administration of justice around the
country. Our attorneys, for example, take great care to ensure that grand jury
investigations are both full and fair. Indeed, the very institution of the grand jury­­
consisting as it does of ordinary citizens­­provides an added layer of balance to our
investigations. To be sure, though, a grand jury operates with a broad and time-honored
mandate: to search broadly for the truth and enlist everyone with potentially useful
information in that search. As the Supreme Court has explained, the "investigative power
of the grand jury is necessarily broad if its public responsibility is to be adequately
discharged." Branzburg v. Hayes, 408 U.S. 665, 700 (1972).

In our investigations and prosecutions we always respect civil liberties, including the
First Amendment rights of citizens and the media. Since the Founding era, journalists
have contributed invaluably to our public discourse. Every schoolchild learns of the
importance of Thomas Paine's contention, penned as it was in a revolutionary-era
pamphlet, that "common sense" compelled a separation from England and the
establishment of a new nation. More modern examples abound. Indeed, it is difficult, if
not impossible, to read any newspaper or Internet news site and not find commentary on
issues of enormous importance to our communities and nation. The Department of Justice
fully respects and is committed to protecting the media's right to comment, however
favorably or critically, upon the course of government and the actions of public officials.

Striking the right balance today between vigorously investigating and prosecuting crime
and protecting civil liberties presents unique challenges. Our nation is engaged in a war
on terror, and the Department's highest priority is to prevent another attack. Our
prevention efforts must be tailored to the nature of the enemy we face­­extremists
constantly searching for ways to penetrate our communities and inflict death and
destruction upon our people. Secrecy and surprise are cornerstones of our enemy's
approach. Our response must follow suit. Our counterterrorism arsenal must include
secrecy among its weapons. To publish the full contours of our prevention efforts would
provide our enemy with unacceptable opportunities. Certain information must be kept
classified and outside the public domain.

In making this point, the Department fully appreciates that there is not unity of opinion as
to how America should conduct its war on terror. We are fighting a new kind of war that
regularly presents new kinds of challenges, and Americans rightly are asking new kinds
of questions. This debate is healthy and welcomed.

But our public dialogue, in which journalists play an essential role, cannot be permitted to
itself breach our nation's security. In this regard, the media bears the important
responsibility of striking the proper balance in its reporting­­to keep Americans
informed and to comment broadly without arming our enemy or risking danger to our
troops, communities, or nation. The Department appreciates the care with which the
media has undertaken this responsibility.

My larger point is that our Constitution permits the proper balance to be struck. As a
nation, we are fully capable of both protecting our security and preserving the media's
right to engage in robust reporting on controversial issues. Security and free speech are
not mutually exclusive. Or, as Justice Goldberg famously observed, the Constitution is
"not a suicide pact." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963).

The Department of Justice has developed a strong record in striking the right balance. I
want to describe that record by explaining how we investigate leaks of classified
information. Let me emphasize at the outset the seriousness of the problem posed by the
unauthorized disclosure of classified information. An individual who leaks classified
national defense information commits a crime. To talk about such leaks, then, is to talk
about criminal conduct. There is no virtue in leaking; it reflects a profound breach of
public trust and is wrong and criminal.
The consequences of leaking are extraordinarily grave. Leaks lay bare aspects of our
national defense; they provide a window into steps we are taking to secure our country;
they risk arming terrorists with precisely the information needed to avoid detection in
plotting an attack upon our troops or communities; in short, they expose and damage our
nation. These concerns and realities have been echoed by the President and Members of
Congress in both the House and the Senate, including Members of this Committee.

Some skeptics have tried to paint those who unlawfully leak classified information to the
press as whistleblowers caught in an intractable dilemma between, on the one hand,
allowing what they believe may be unlawful activity to continue within the Government
and, on the other hand, unlawfully disseminating information to someone with no
authority to receive it. These so-called whistleblowers, the argument runs, escape the
dilemma by conditioning a disclosure of classified information upon a journalist's
promise of confidentiality.

This dilemma is a false one. It incorrectly assumes that the media is an individual's only
outlet. Not so. Congress took care to ensure that no Government employee faces such a
dilemma by enacting the Intelligence Community Whistleblower Act of 1998. That
statute established mechanisms through which members of the intelligence community
could voice concerns while ensuring that classified information would remain secure. In
the first instance, the statute directs individuals to relay their concerns to their agency's
Inspector General. Employees who are dissatisfied with their Inspector General's
response are then authorized to bring their concerns to an appropriate committee of
Congress in its oversight capacity.

With these mechanisms in place, it is a mistake to dub an individual who leaks classified
information a whistleblower. A leaker commits a crime; a whistleblower, by contrast,
follows the legal course of disclosure enacted into law by Congress. The difference is
significant and should not be not be lost on the Committee.

Upon learning of a leak of classified information to the media, our primary focus is on
identifying and prosecuting the leaker, not the reporter or media organization who
received the leaked information. This focus is reflected in the Department's guidelines
for the issuance of subpoenas and other compulsory process to the media. Codified at 28
C.F.R. § 50.10, the guidelines demonstrate how seriously the Department takes any
investigative or prosecutorial decision that implicates members of the news media. This
policy, by its terms, seeks to "balanc[e] the concern that the Department of Justice has for
the work of the news media and the Department's obligation to the fair administration of
justice." 28 C.F.R. § 50.10.

The details are important. The guidelines provide that "[a]ll reasonable attempts should
be made to obtain information from alternative sources before considering issuing a
subpoena to a member of the news media." Id. § 50.10(b). They also call for undertaking
negotiations with the media before resorting to a subpoena. Even then the prosecutor
should do so only if there are "reasonable grounds to believe, based on information
obtained from nonmedia sources, that a crime has occurred, and that the information
sought is essential to a successful investigation­­particularly with reference to directly
establishing guilt or innocence." Id. § 50.10(f)(1).

This process ordinarily plays out across multiple levels within the Department of Justice.
A prosecutor seeking confidential source information from a journalist must justify the
request in writing. If the request receives approval from a United States Attorney, it then
comes to Washington for careful vetting within our Criminal Division, Office of Public
Affairs, the Office of the Deputy Attorney General, and, ultimately, the Office of the
Attorney General. The Attorney General's approval is mandatory in all cases in which
cooperation fails with a particular journalist.

This exhaustive and rigorous process is undertaken for a reason­­to enable close scrutiny
by career prosecutors and to ensure that subpoenas seeking confidential source
information from journalists are issued only as a matter of last resort. In the past 15 years,
the Attorney General has approved only approximately 13 requests for media subpoenas
that implicated source information. This record reflects restraint: we have recognized the
media's right and obligation to report broadly on issues of public controversy and, absent
extraordinary circumstances, have committed to shielding the media from all forms of
compulsory process. The Department of Justice will steadfastly continue to strike this
same balanced approach in our investigations.

Our approach fully complies with the law. While the Supreme Court repeatedly has
stressed the importance of the media's role in our society, it also has decisively declared
that the media is not exempt from the general obligation­­shared by all citizens­­to
provide evidence to grand juries investigating crimes. The seminal case is Branzburg v.
Hayes, 408 U.S. 665 (1972). The Supreme Court in Branzburg held that journalists had
no First Amendment right to refuse to comply with a subpoena and provide testimony to
a grand jury regarding information received from a confidential source. See id. at 690-91.
The Court's message was plain: "[W]e cannot accept the argument that the public interest
in possible future news about crime from undisclosed, unverified sources must take
precedence over the public interest in pursuing and prosecuting those crimes reported to
the press by informants and in thus deterring the commission of such crimes in the
future." Id. at 695. Other courts have reinforced this conclusion. See, e.g., In re Grand
Jury Subpoena, Judith Miller, 438 F.3d 1141, 1146-48 (D.C. Cir. 2006); New York
Times v. Gonzales, No. 05-2639, 2006 WL 2130645, at *11-12 (2d Cir. Aug. 1, 2006).

No aspect of the legal landscape or the Department's guidelines has inhibited the media
from robustly reporting and commenting on controversial issues. To the contrary,
journalists have time and again proven themselves more than able to gather information
and disseminate news and commentary on the most controversial matters of the day. Only
in extraordinarily rare circumstances­­approximately 13 cases in 15 years­­has the
Department determined that the interests of justice warranted compelling information
implicating sources from a journalist. We have struck the right balance and will continue
to do so in the future.
I want to turn now to S. 2831, the "Free Flow of Information Act of 2006." The
Department of Justice firmly opposes the bill. In recent months, at least three Department
officials have provided statements or offered testimony on the proposed legislation, and
on June 20 of this year we detailed our objections in a views letter. I do not intend to
rehash all of the points made in our letter or prior testimony. Allow me instead to focus
on the bill's most serious deficiencies and to address the practical consequences that
would befall the administration of justice and criminal defendants if the bill became law.

As an initial matter, proponents of the bill contend that it is a necessary response to
certain recent high-profile cases in which the Department's actions have purportedly
signaled a newfound eagerness to stop journalists from reporting of leaks. The contention
is misguided. The Department has not changed its policy or approach to investigating
leaks. We continue to follow the same guidelines and processes that have resulted in the
issuance of subpoenas implicating source information in only approximately 13 cases in
the last 15 years. We continue to regard journalists as a source of last resort. There is not
one shred of evidence supporting the notion that the Department of Justice is out to get
the media.

Nor is there anything but conjecture to support the contention that journalists are writing
in fear. Indeed, the argument parallels the same ones presented to, and rejected by, the
Supreme Court in Branzburg in 1972. The Supreme Court dismissed as "speculative" the
assertion that reporting would be chilled by requiring journalists to provide confidential
source information to a grand jury. Branzburg, 408 U.S. at 694. If the critics in Branzburg
were to be believed, we would have seen a marked decline in press freedoms in the
ensuing years. Of course, the opposite has occurred. We live in an age in which news and
critical commentary is everywhere­­in print, over airwaves, and throughout the Internet.
The proponents of the bill have not proven their case; they have failed to demonstrate that
the Department of Justice has sought to compel confidential source information from
journalists more aggressively or in greater numbers than it has in the past. The proposed
bill is a solution in search of a problem.

Let there also be no doubt about the ramifications the bill would have on the
administration of justice. The bill would work a dramatic change in current practice and
severely hamper our ability to investigate and prosecute serious crimes, including acts of
terrorism.

Under Section 9 of S. 2831, a court must determine "by a preponderance of the evidence"
that "an unauthorized disclosure has significantly harmed the national security in a way
that is clear and articulable" and that such harm "outweighs the value to the public of the
disclosed information." By its terms, then, the bill not only transfers to the judiciary the
authority to second-guess the Executive's determinations regarding what does and does
not harm the national security, it also licenses courts to find that a reporter's promise to
conceal a source's identity can override national security interests, even when harm to
national security is conceded. The only necessary finding is that the public interest was
sufficiently strong to justify disclosure of the classified information.
The Department of Justice is particularly concerned about Section 9 and its transfer of
authority to make national security determinations to the federal judiciary. The bill would
force federal judges into making extremely difficult decisions about the national security
implications of a particular leak­­decisions that would require extensive and nuanced
knowledge about our larger national security strategy, the details of classified programs,
and the ground-level impact of certain information being disseminated to the public. The
process would require the submission of ample evidence and consume inordinate
amounts of time, which we rarely can afford to lose when confronted with the dynamics
that define national security challenges today. Perhaps Judge Wilkinson put these
concerns best in his concurring opinion in United States v. Morison, 844 F.2d 1057 (4th
Cir. 1988):

Evaluation of the government's [national security] interest . . . would require the judiciary
to draw conclusions about the operation of the most sophisticated electronic systems and
the potential effects of their disclosure. An intelligent inquiry of this sort would require
access to the most sensitive technical information, and background knowledge of the
range of intelligence operations that cannot easily be presented in the single `case or
controversy' to which courts are confined. Even with sufficient information, courts
obviously lack the expertise needed for its evaluation. Judges can understand the
operation of a subpoena more readily than that of a satellite. In short, questions of
national security and foreign affairs are of a kind for which the Judiciary has neither
aptitude, facilities nor responsibility and which has long been held to belong in the
domain of political power not subject to judicial intrusion or inquiry.

Id. at 1082-83 (Wilkinson, J., concurring).

Section 9 of the bill would thrust the judiciary into law enforcement matters reserved by
the Constitution to the Executive branch. Within the context of confidential investigations
and secret grand jury proceedings, determinations regarding the national security interests
are best made by members of the Executive branch­­officials with broad access to the
full scope of information necessary to protect our national security. As Justice Stewart
explained in his concurring opinion in the Pentagon Papers case, "it is the constitutional
duty of the Executive­­as a matter of sovereign prerogative and not as a matter of law as
the courts know law­­through the promulgation and enforcement of executive
regulations, to protect the confidentiality necessary to carry out its responsibilities in the
fields of international relations and national defense." New York Times Co. v. United
States, 403 U.S. 713, 729-30 (1971) (Stewart, J., concurring).

Let me be clear about what is at stake in Section 9. Under existing law, an individual
wishing to challenge a subpoena bears the burden of proving that the request for
particular evidence is unreasonable or oppressive. The proposed bill, by contrast, saddles
the Government with the obligation of going into a federal court and producing evidence
of a quantity sufficient to prove clear and articulable harm to our nation's security. In
addition to infringing upon constitutionally-conferred executive authority, the bill goes a
step further and makes matters all the worse: it places a thumb on the scale in favor of the
reporter's privilege. The Government cannot obtain confidential source information
unless it first proves that the harm to our national security would outweigh the public's
interest in maintaining the free flow of leaked information. Our national security is too
important to be subjected to these standards and burdens.

Section 9, in short, would reflect bad policy and make bad law. The practical impact,
moreover, could be enormous. To provide a simple example, consider a journalist who
publishes a detailed story about covert classified efforts to track the movements of
international terrorists. The story also contends that aspects of the covert program have
encroached on privacy interests of certain individuals by mistakenly identifying them as
terrorists. The journalist attributes the information to a confidential source and describes
the source as a government insider who is so concerned about the program that he intends
to resign and relocate outside the United States, taking with him documents detailing the
program's operation.

Despite their best efforts, the Department of Justice and the intelligence community are
unable to identity the confidential source through independent means, and the journalist
refuses to cooperate voluntarily with the Department. To prevent further harm to national
security, the Attorney General quickly approves a narrowly-tailored subpoena that seeks
only the identity of the journalist's source. The journalist believes the public has a right to
know about the covert program and the potential privacy problems and thus challenges
the subpoena in court.

Under current law, to prevail on a motion to quash, the journalist would be required to
prove the subpoena request was unreasonable and oppressive. Given the circumstances, it
is unlikely the journalist could make such a showing and thus the Department would
learn the leaker's identity and apprehend him in time to prevent additional harm to our
national security. Under the proposed bill, however, the Department would first be
required to provide affirmative proof that the leak damaged our national security. While it
is possible that such a showing could be made in this scenario, it is equally likely that a
court could find that the harm was not yet realized or capable of specification. That
finding would be enough to defeat the subpoena, even though the journalist would have
done nothing other than file the motion to quash, thereby shifting the burden of proof to
the Government. Moreover, even if a court credited the Department's showing of harm,
the court nevertheless could find that public's interest in learning about the alleged
privacy violations outweighed the Government's interests. That finding would defeat the
subpoena.

This example is both realistic and revealing. It proves that the proposed legislation would
impose significant and potentially crippling burdens on federal law enforcement in cases
directly affecting our national security. Given the Department's record of restraint in
compelling confidential source information from journalists, the bill would inflict
unjustifiable harm upon a proven approach to effective law enforcement.

Section 9 is by no means the only provision of S. 2831 with serious deficiencies. The bill
is deficient in the simplest of dimensions. Take, for example, the definition of
"journalist" in Section 3. It includes only journalists who work for financial gain and
thereby discriminates against individuals who, for no money, contribute a story to a local
newspaper. This deficiency leaves the bill wide open to serious constitutional challenge
on the ground that it unjustifiably discriminates against categories of speakers.

Section 5 of the bill raises grave constitutional concerns of an altogether different variety.
The Sixth Amendment entitles defendants to compel witnesses to appear in court and
testify. Section 5, however, would permit defendants to access such a witness only if,
"based on an alternative source," they are able to show that the witness had information
relevant to a successful trial defense. The Sixth Amendment imposes no such "alternative
source" requirement. Section 5 is egregiously defective in a more basic way. It requires a
court to balance criminal defendant's "constitutional rights" against the "public interest in
newsgathering and in maintaining the free flow of information." Such a balancing
requirement is indefensible; individuals facing grave criminal penalties, say, for example,
a life sentence, should not have their "constitutional rights"­­indeed, their liberty­­
thwarted by the interest of "newsgathering."

Other points warrant emphasis. Some supporters of S. 2831 have suggested that the bill is
no more than a codification of the Department's own guidelines. That view is badly
mistaken. The Department's guidelines preserve the constitutional prerogatives of the
Executive branch with respect to key decisions regarding, for example, the kind of
evidence that is presented in grand jury investigations and what constitutes harm to the
national security. The proposed legislation, by contrast, would shift ultimate authority
over these and other quintessentially prosecutorial decisions to the judiciary.
Furthermore, the proposed legislation would replace the inherent flexibility of the
Department's guidelines, which can be adapted as circumstances require­­an especially
valuable attribute in a time of war­­with a framework that is at once more rigid (by
virtue of being codified by statute) and less predictable (by virtue of being subject to the
interpretations of many different judges, as opposed to a single Department with a clear
track record of carefully balancing the competing interests).

I have also heard it suggested that the Department's concerns are overblown because
many states have enacted workable media shield laws. Such analogies are entirely
misplaced. An individual state's decision to provide a reporter with protection against a
subpoena from a prosecutor investigating crimes under state law, serious though those
crimes may be, says little about the virtues of providing journalists with such protections
at the federal level. The Federal Government, unlike state and local governments, is
uniquely responsible for providing for the national defense, working with our
international partners to prevent acts of terrorism, and investigating crimes with
expansive national and international ramifications, such as terrorism, espionage, and
leaks of classified information.

In closing, I wish to end where I began. The issues before the Committee are of enormous
significance. They require each of us to acknowledge the necessity of balancing
important interests and then to focus on the Department of Justice's record in striking that
balance. That record, as I have explained, is one of success and restraint. We seek to
work cooperatively with the media, and only rarely has the Department determined that
the interests of justice warranted seeking to compel a journalist to reveal information
obtained from a confidential source. The rarity of those occasions reflects the
Department's commitment to respecting the media's important role within our society.
The media has been and will remain a source of last resort in our investigations.

Against the backdrop of the Department's record and the lack of any evidence showing
that our approach has meaningfully chilled robust reporting by the media, I respectfully
urge the Committee not to support S. 2831. The bill would significantly weaken the
Department of Justice's ability to obtain information of critical importance to protecting
our nation's security, inject the federal judiciary to an extraordinary degree into affairs
reserved by the Constitution for decision within the Executive branch, and, at bottom,
encourage the leaking of classified information.

Thank you again for the opportunity to testify, and I look forward to answering the
Committee's questions.

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