WASHINGTON, DC—After last week’s controversial leaking of sensitive documents related to the U.S. war in Afghanistan, U.S. Senator Charles E. Schumer (D-NY) announced Wednesday that Wikileaks would never qualify for any protection under the media shield legislation that awaits action in the Senate, adding he is already drafting new language to incorporate into the bill to make that explicit.
Schumer, the Senate’s lead author of the measure, said two parts of the existing bill already ensured that Wikileaks could never assert the privilege created by the legislation. First, the site does not fit the bill’s definition of a journalist, which requires that the covered party regularly engage in legitimate newsgathering activities. Second, the bill allows a judge to waive the privilege altogether if critical national security concerns are at stake.
But Schumer said he would be working with Senator Dianne Feinstein (D-CA), the Senate Intelligence Chairman, anyway on language that could serve as a further safeguard against the possibility of Wikileaks ever seeking protection from the bill.
“Neither WikiLeaks, nor its original source for these materials, should be spared in any way from the fullest prosecution possible under the law,” Schumer said. “Although the bill in no way shields anyone who broke the law from prosecution, we are going the extra mile to remove even a scintilla of doubt.”
Wikileaks, the Swedish-based online document archive, last week made public more than 75,000 sensitive documents chronicling years of developments in the Afghanistan war. The site has said it does not know the identity of the individual who provided the military documents. But the Army is investigating the leak, and, in a move that may indicate the probe has widened to include civilians who may have aided the leak, the Federal Bureau of Investigation is also involved. On Sunday, Defense Secretary Gates said the site bore a “moral culpability” for any harm that might come to U.S. troops or Afghan individuals identified in the report as acting as informants. Admiral Mike Mullen, the Chairman of the Joint Chiefs, suggested the site’s founder might come to have “blood on his hands.”
The media shield proposal was approved by the Senate Judiciary Committee in December 2009. In order to preserve freedom of the press in an era where courts are increasingly seeking to compel testimony from journalists, the bill would confer a legal protection to reporters who seek to preserve their sources’ anonymity. But the proposal has also accounted for national security concerns raised by the Obama administration by preserving a balancing test that would enable a judge to weigh a journalist’s privilege claim against the dangers posed to national security.
Schumer and Feinstein are working with representatives of the newspaper industry in crafting the new language that will explicitly exclude organizations like Wikileaks—whose sole or primary purpose is to publish unauthorized disclosures of documents—from possible protection. They said they hope to reach agreement on the wording of the new section in the coming weeks, ahead of the Senate’s possible consideration of the full measure later this fall.
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