PenceBlog: Congressman Pence presses Attorney General Mukasey on federal media shield - U.S. Congressman Mike Pence : 6th District Of Indiana

In a Judiciary Committee hearing today, Congressman Pence asked Attorney General Michael Mukasey about the federal media shield bill. Full transcript follows. Watch the video HERE.

The Politico ran a story today about the pending legislation in the Senate.

Broadcasting & Cable also has a story in response to the statements made by the Attorney General at today's hearing.

Congressman Pence: Mr. Attorney General, welcome to the Judiciary Committee.

Attorney General Mukasey: Thank you.

Congressman Pence: Let me take the opportunity to thank you for your exceptional leadership on the recent bipartisan compromise on the Foreign Intelligence Surveillance Act.

Attorney General Mukasey: Thank you.

Congressman Pence: You’ve played an instrumental role in achieving a legislative accomplishment that I believe contributes greatly to our national security.

As you might suspect, since we debated it in one of the nation’s largest newspapers, I want to focus my attention on an issue upon which we disagree: H.R. 2102 – the Free Flow of Information Act. You’ve commented on it earlier and I want to take the opportunity to raise some issues and pursue a line of questioning, but I do so with great respect.

This legislation was introduced about three years ago by myself and my Democrat colleague, Congressman Rich Boucher. You’ve made your opposition very clear in this testimony today and in other public statements. Your written testimony today says that the bill “would endanger national security by making it nearly impossible for us to investigate leaks of even the most sensitive national security information.”

We’re very aware of that. That kind of a strong pronouncement may be somewhat jarring to a committee that very strongly endorsed this legislation and to a Congress that voted 398-21 on October 16, 2007 to endorse this bill. I want to point out for the record, Mr. Attorney General, that this was supported by the Republican and the Democratic Leadership. It was also supported by the Ranking Members of the Intelligence Committee, the Armed Services Committee, and the Chairmen of those Committees.

I think it was supported precisely because we did endeavor to deal thoughtfully and carefully with precisely the issue that seems to be the focal point of your objection. Namely concerns about national security.

As you’re aware, in the legislation, in the House version of the bill we only provided a qualified privilege for journalists and made national security the leading reason for which the shield could be pierced. Our legislation permits compelled disclosure to prevent or identify the perpetrator of an act of terrorism against the United States, to prevent significant and specified harm to national security. You made reference to a child abuse exception not being included in the bill—I would think that would probably be included by inference in the bodily harm exception in our bill, but I know the Senate includes child abuse in their legislation and I’m open to it. It also allows compelled disclosure of sources in cases that involve the unauthorized disclosure of properly classified information that cause or will cause significant or articulable harm to national security.

I think the inclusion of that very careful structure that does, at a point, call upon our judicial branch to exercise discretion—balancing our interest in national security with our interest in preserving the liberties upon which this nation was founded—seems to be a focal point of your concern.

I want to begin by assuring you, General, that as the Congress tried to fulfill its role in addressing both our national security as well as preserving what we’re trying to secure, that we did so in a way that made national security interests truly paramount; which, of course, it comes as no surprise that Congress would act in this case. As you know much better than I, being an authority in the law, 1972 the Branzburg Case, Justice White virtually invited Congress to develop a federal media shield statute saying that Congress had “the freedom to determine whether a statutory newsman’s privilege is necessary and desirable” and to “fashion standards and rules as narrow or as broad as deemed necessary.”

I guess what my question would be, with a little latitude from the Chairman to give you a chance to respond, is—you made the comment today that if ten angels swearing on the Bible wouldn’t change your mind—

Attorney General Mukasey: No, that’s not what I said. I said it wouldn’t change what’s in the bill.

Congressman Pence: —wouldn’t change what’s in the bill. Well, let me say, if ten angels swearing on the Bible wouldn’t change your view of this bill, would forty American journalists subpoenaed, questioned, or held in contempt do it?

You said Mr. General, if I may, that this is a “solution in search of a problem” and the Justice Department has argued that it’s approved only 19 source-related subpoenas since 1991. However the number does not include the number of subpoenas issued for non-source information. And also, since 2001, at least 19 additional journalists have been subpoenaed by both federal and special prosecutors and you yourself know that Department of Justice guidelines do not apply to civil litigants or special prosecutors.

I would say with respect, this is not a solution in search of a problem, this is a Constitutional, statutory response to a rising erosion of our First Amendment freedom of the press.

Let me make one last point, if I may at the Chairman’s indulgence. I must express some disappointment at the fact that in my three years as a working legislator on this issue—and most of that time you were not in your present role, so I don’t direct this to you—as you speak about the need for language, I don’t believe the Justice Department has ever offered any language to this Committee relative to what would be an acceptable version of a federal media shield statute.

My question to you would be—recognizing that, as you said in your testimony, the Administration has a “Constitutional responsibility to safeguard classified information” and I know you recognize that the Administration has a Constitutional responsibility to protect the Constitution and the First Amendment freedom of the press—can we anticipate, as the Senate may well be taking this bill up in the coming days, may we anticipate a more constructive engagement from the Justice Department in fashioning this legislation in a way that meets the interest of our liberty and our security?

Or should we continue to anticipate as legislators what I would characterize as the strident opposition of the Justice Department to creating the “statutory newsman’s privilege” that the Supreme Court acknowledged could be created 36 years ago?

Attorney General Mukasey: I guess I’m going to ask for both latitude and longitude from the Chair—say a minute, minute and a half—to respond to the six minutes or so that I just heard.

First, three points.

First of all, I’m not questioning anybody’s good faith in the drafting of this legislation—the Congressman’s or anybody else, but I think it’s possible to have a disagreement in good faith.

Congressman Pence: So do I.

Attorney General Mukasey: Let’s focus on two of the points you mentioned. One that was slightly alighted which was a showing that the information properly classified.

That raises a host of problems—we’re talking about procedurally, substantively—does that require the government to come in and disclose yet more classified information to show that the classified information was properly classified.

A closely related problem is the showing that the danger exceeds the value of disclosure. Passing for a minute that this a complete imponderable, totally imponderable, that would require the government to come in and basically make a bad promise worse by articulating precisely how threatened disclosure could cause yet more harm, I don’t think that’s a solution.

Now, as I said, I’m willing to talk to anybody who’ll talk to me. But we have in place a system that closely restricts the ability to subpoena reports and the ability subpoena source information. I think that system has proved adequate—I’m willing to talk to anybody who thinks it hasn’t. But what I’m not willing to do is to take steps that will essentially do more to protect leakers than it does to protect journalists.

Congressman Pence: I thank the General and I thank the Chairman for his indulgence.

A copy of Attorney General Mukasey's prepared remarks is available HERE.

posted by Pence Press Office # 11:30 AM