December 31, 2009

And if Bush had tried these tactics?

Government agents going after bloggers for their sources just seems a little, anti-First Amendment.

From an AP article on the Transportation Security Administration's efforts to investigate;

TSA special agents served subpoenas to travel bloggers Steve Frischling and Chris Elliott, demanding that they reveal who leaked the security directive to them. The government says the directive was not supposed to be disclosed to the public.

Frischling said he met with two TSA special agents Tuesday night at his Connecticut home for about three hours and again on Wednesday morning when he was forced to hand over his lap top computer. Frischling said the agents threatened to interfere with his contract to write a blog for KLM Royal Dutch Airlines if he didn't cooperate and provide the name of the person who leaked the memo.

"It literally showed up in my box," Frischling told The Associated Press. "I do not know who it came from." He said he provided the agents a signed statement to that effect.

Actually, in the U.S. there has never been a right to protect sources in a federal court. However, federal courts will refuse to force journalists to reveal sources, unless the information the court seeks is highly relevant to the case, and there's no other way to get it. Journalists, like all citizens, who refuse to testify even when ordered to can be found in contempt of court and fined or jailed.

It's explained well here;

In Branzburg v Hayes (1972), the Court considered the case of a reporter who, in two newspaper stories about drug use, had reported his observations of persons smoking marijuana at a party and of two men turning marijuana into hashish. Called before a grand jury to testify concerning the identities of drug users and drug synthesizers, Branzburg refused, claiming that the First Amendment provided reporters with a privilege against testifying in such circumstances. The Court disagreed, rejecting the notion that the First Amendment offered any absolute privilege. Four members of the Court went so far as to write that the First Amendment offered the press no protection against testifying that would not be available to any member of the general public. In a critical concurring opinion, however, Justice Powell indicated that the First Amendment requires that goverment at least demonstrate that its demands have a real bearing to a subject under investigation and that there exists "a legitimate law enforcement need" for the information sought from a reporter. Lower courts have found Powell's concurrence to be the basis for a "qualified privilege" that protects reporters from government "fishing expeditions," as well as from having to testify in many civil cases. The four dissenters in Branzburg would have required the government to show a compelling need for a reporter's testimony and that there existed no good alternative sources for the sought-after information.

Given that the government is investigating a leak in national security information that could compromise the citizens of the United States, this represents a reasonable action on the part of the investigators.


Three questions remain that are still worth asking remain:

(1) Is this really that urgent of an investigation? It's not about the bomber, it's about the leak of a ramping up of security that undoubtedly would be divulged to the press and public anyway in short order. My opinion is that a leak poses a danger if not in this instance, then as the risk of further leaks in more sensitive instances. That's why it's worth investigating.

(2) If Bush had tried these tactics, what would have been the hue and cry in the press? Don't answer, it's a rhetorical question that everybody knows the answer to already.

(3) Where's the ACLU on this? I know, it's a legitimate investigation, but stupid cases have never stopped the ACLU from getting on the wrong side of an issue before. Oh wait, it's Team Obama now, that explains it.

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