Archive for October, 2009

False Protection

October 31, 2009

In today’s NYTimes, page one, comes this revelation: a compromise has been reached that just may be the breakthrough for that “Press Shield” law which has been withering in the Senate.  It is a disturbing development.

The very idea of a press shield law is debatable; it may actually be to the detriment of the press (more on that later).  But the most glaring change in the Administration’s position seems to be the role played by judges in cases where classified information has been leaked.  Apparently, the judge may be able to quash subpoenas of the media source if it is found that the “public interest” has been served in the release of the information, using a kind of balancing test.  In other words, the judge may restrain the Executive branch from discovering a criminal who endangered national security!

I don’t know of any prior example where a President gave approval to such a limitation of his authority.  And to a judge, no less.  Most likely, one that  was a political appointment and is not answerable to voters.

Will Congress actually pass such a provision?  I doubt it, but, hey, my record of political prognostication is weak. However, if it does pass, I feel more confident in predicting that it will be tested in the courts — obviously by the next Administration — and that the test case will rise very fast to the Supreme Court. I don’t see how this Court, or even the Court ten years hence, would not strike it down.

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