The Associated Press is reporting that Senator Chuck Schumer, a prime sponsor of the Free Flow of Information Act (commonly known as the shield bill) has reached a deal with the White House on one of the bill’s most difficult sticking points: under what circumstances, and how, would the executive branch be able compel testimony from someone covered by the bill without a judge fully weighing the ramifications of forcing the reporter to talk?
According to the AP’s short write up:
The deal allows the government to sidestep the public interest balancing test in the event of classified leak cases where the government can show that disclosure is necessary to prevent or mitigate an act of terror. The Senate Judiciary Committee could take up the media shield bill next week.
The key word could be “show.” Does show mean—as it did in a September draft of the administration’s preferred legislative language—that the government merely has to have a senior government official submit a “specific factual showing” that disclosure would be necessary to prevent an act of terror, or is a judge required to examine such an assertion?
Also missing from that paragraph is any indication that the administration would be, as their September draft envisioned, allowed to sidestep the privilege in cases where “significant and articulable harm to national security” is at stake—a far more elastic and expansive category than simply terrorism.
Without seeing legislative language, there’s a lot left unclear in that brief description. But clearly things are moving.’
UPDATE: More details from the New York Times‘s Charlie Savage. Looks like both the national security and the terrorism work around is in the compromise.
Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.