PB: Yeah. Section 5 is a critical component; it’s the national security exception. At one point, to compel disclosure to prevent significant and articulatable harm to national security or to prevent a terrorist attack there was public interest balance on whether or not disclosure was in the public interest. And that’s gone. And, in reality, if we knew where Osama bin Laden was located, the media would turn that information over. But if the government wanted to compel that, they could say “That’s specific and articulatable harm. We want to prevent a terrorist attack.” We’d never win that case.
But if there were a leak situation, that would go under the criminal area. If there were a leak investigation looking at the CIA prison story, or the warantless wiretapping leak, Abu Ghraib, it would go under section two, or the criminal section. If you were investigating a past leak you would have public interest balancing. The reporter would at least have the ability to say “Here, there’s clear and convincing evidence to say that this story was valuable to the public,” and be able to make the case that the source could be protected. But if there were a leak that the government could demonstrate that there’s going to be significant and articulatable harm, or potential for a terrorist attack from that leak, then they could get the information.
CH: Let’s take as a recent example the Times’s wiretapping story. Many people argued that that story did make attacks more likely. Is that a case where there would be a battle about whether or not that argument—that attacks would be more likely because the program was exposed—was far enough along the line of a significant and articulatable harm?
PB: You can’t really look at any kind of case and try to predict the outcome. It all depends on how it’s presented, and the facts. I think what’s important with this bill is that you know what the rules and procedures are, so you don’t have to spend any energy and time and resources knowing where the lines are drawn. In that situation, I imagine lawyers would argue that it revealed that this was going on to members of Congress and the general public, and led to legislation enacted by Congress to change warrantless wiretapping. These things are going to be balanced out and judges are fully capable of balancing the competing interests on both sides. And they do it everyday.
This bill was never about a particular case. It was always about clear rules of procedure and giving guidance to the courts. And I think case law will develop.
CH: In the event of a criminal leak investigation, the argument that that leaker might leak again wouldn’t be sufficient to compel testimony from a covered person. Is that correct?
PB: Yes. The language is fairly complex. It says the government can’t, on its face, say the fact that the leaser would leak again. That’s not good enough. They have to provide further evidence that there’s going to be the potential for a future leak, and present facts to that.
With this bill, on national security leaks, for the most part the government can’t go up there and say “We need the information for national security.” They’ve got to demonstrate why they need the information. On leaks, it protects that perspective; it provides balancing when the government is looking back.
CH: You were on this conference call that just broke up. How is this being received?
PB: I think there was a lot of good discussion. There was discussion about the clear and convincing evidence standard, and whether or not that was too much of a give. There were some folks who were concerned about that, and there was some conversation about whether non-confidential information was protected. It’s much clearer in the house bill that there’s protection for non-confidential information.
CH: So, information that was given without the explicit promise of it being confidential?