国会记录：2006年5月18日（参议院）Page S4800-S4803关于引入的卢尔·卢加先生（为自己，幽灵先生，Dodd先生，格雷厄姆先生和舒默先生）提出陈述和联合决议的陈述。。A bill to guarantee the free flow of information to the public through a free and active press while protecting the right of the public to effective law enforcement and the fair administration of justice; to the Committee on the Judiciary. Mr. LUGAR. Mr. President, the bill at the desk is introduced on behalf of myself, Senators Specter, Dodd, Graham, and Schumer. I am pleased to join my good friends and colleagues, Senators Specter and Dodd, in introducing a revised version of the Free Flow of Information Act. I believe that the free flow of information essential element of democracy. In order for the United States to foster the spread of freedom and democracy globally, it is incumbent that we first support an open and free press nationally. The role of the media as a conduit between government and the citizens it serves must not be devalued. Unfortunately, the free flow of information to citizens of the United States is inhibited. Over 30 reporters were recently served or threatened with jail sentences in at least four different Federal jurisdictions for refusing to reveal confidential sources. I fear the end result of such actions is that many whistleblowers will refuse to come forward and reporters will be unable to provide our constituents with information they have a right to know. In 1972, the Supreme Court held in Branzburg v. Hayes, that reporters did not have an absolute privilege as third party witnesses to protect their sources from prosecutors. Since Branzburg, every State and the District of Columbia, excluding Wyoming has created a privilege for reporters not to reveal their confidential sources. My own State of Indiana provides qualified reporters an absolute protection from having to reveal any such information in court. The Federal courts of appeals, however, have an incongruent view of this matter. Each circuit has addressed the question of the privilege in a different manner. Some circuits allow the privilege in one category of cases, while others, have expressed skepticism about whether any privilege exists at all. Congress should clarify the extraordinary differences of opinion in the Federal courts of appeals and the effect they have on undermining the general policy of protection already in place among the States. Likewise, the ambiguity between official Department of Justice rules and unofficial criteria used to secure media subpoenas is unacceptable. There is an urgent need for Congress to state clear and concise policy guidance. Senators Specter, Dodd, and I have introduced legislation today that preserves the free flow of information to the public by providing the press the ability to obtain and protect confidential sources. It provides journalists with certain rights and abilities to sources and report appropriate information without fear of intimidation or imprisonment. This bill sets national standards, based on Department of Justice guidelines, for subpoenas issued to reporters by the Federal Government. [[Page S4801]] Our legislation promotes greater transparency of government, maintains the ability of the courts to operate effectively, and protects the whistleblowers that identify government or corporate misdeeds and protect national security. It is also important to note what this legislation does not do. The legislation does not permit rule breaking, give reporters a license to break the law, or permit reporters to interfere with crimes prevention efforts. Furthermore, the Free Flow of Information Act does not weaken national security nor restrict law enforcement. Additional protections have been added to this bill to ensure that information will be disclosed in cases where the guilt or innocence of a criminal is in question, in cases where a reporter was an eye witness to a crime, and in cases where the information is critical to prevent death or bodily harm. The national security exception and continued strict standards relating to classified information will ensure that reporters are protected while maintaining an avenue for prosecution and disclosure when considering the defense of our country. Reporters Without Borders has reported that more than 100 journalists are currently in jail around the world, with more than half in China, Cuba, and Burma. This is not good company for the United States of America. Global public opinion is always on the lookout to advertise perceived American double standards. I believe that passage of this bill would have positive diplomatic consequences. This legislation not only confirms America's constitutional commitment to press freedom, it also advances President Bush's American foreign policy initiatives to promote and protect democracy. When we support the development of free and independent press organizations worldwide, it is important to maintain these ideals at home. In conclusion, I thank, again, my colleagues, Senator Specter, the distinguished chairman of the Judiciary Committee, and Senator Dodd for their tireless work on this issue. With their assistance, I look forward to working with each of my colleagues to ensure that the free flow of information is unimpeded. The PRESIDING OFFICER. The Senator from Pennsylvania. Mr. SPECTER. Mr. President, I am pleased to join with Senator Lugar, the principal sponsor, and Senators Dodd, Graham, and Schumer on the introduction of legislation which will codify a reporter's privilege, something that is very necessary. The matter came into sharp focus recently with the contempt citation and the incarceration of New York Times reporter, Judith Miller, for some 85 days. The Judiciary Committee held two hearings on this subject. Senator Lugar, with Congressman Pence in the House, introduced legislation which has formed the nucleus of the bill we are introducing today. The Branzburg v. Hayes case, 33 years ago, which was a 5-to-4 decision, with a concurring opinion by Justice Powell, has led to what is accurately called a ``crazy quilt'' situation in the circuits--five circuits going one way, four circuits going another way, and laws unsettled in some circuits. This bill, modeled significantly after the Department of Justice regulations, will codify this important issue. There is an exception on reporter's privilege for national security cases. Keeping in mind the incarceration of Judith Miller, this bill makes a sharp distinction between national security and an inquiry in the grand jury for obstruction of justice or perjury. As a prosecutor in the past, I have great appreciation for the offenses of obstruction of justice and perjury. But in my judgment, they do not rise to the level of importance as a national security case. When a special prosecutor's investigation shifts from the disclosure of a CIA agent, to a question of obstruction of justice, it is a very different situation. This bill would not permit, would not compel the disclosure of a source for obstruction of justice or perjury, but would compel the disclosure of a source for a national security case. This legislation has the endorsement of 39 of the major media organizations in the United States: The New York Times, the Washington Post, the Associated Press, Time, Hearst Corporation, Philadelphia Inquirer, Newspaper Association of America, ABC, NBC, and CBS. It goes a long way to protecting sources, but it also leaves latitude, in the form of a balancing test, for Federal prosecutors to gain information under limited circumstances for plaintiffs and defendants in civil cases to have access to sources. And, it does not have a shield if a reporter is a witness to some criminal incident. In recent months, there has been a growing consensus that we need to establish a Federal journalists' privilege to protect the integrity of the newsgathering process--a process that depends on the free flow of information between journalists and whistleblowers, as well as other confidential sources. I do not reach this conclusion lightly. The Judiciary Committee held two separate hearings in which it heard from sixteen witnesses. Included in this number were seven journalists, six attorneys, including current or former prosecutors and some of the Nation's most distinguished experts on the first amendment. These witnesses demonstrated that there are two vital, competing concerns at stake. On one hand, reporters cite the need to maintain confidentiality in order to ensure that sources will speak openly and freely with the news media. The renowned William Safire, former columnist for the New York Times, testified that ``the essence of news gathering is this: if you don't have sources you trust and who trust you, then you don't have a solid story--and the public suffers for it.'' Reporter Matthew Cooper of Time magazine said this to the Committee: ``As someone who relies on confidential sources all the time, I simply could not do my job reporting stories big and small without being able to speak with officials under varying degrees of anonymity.'' On the other hand, the public has a right to effective law enforcement and fair trials. Our judicial system needs access to information in order to prosecute crime and to guarantee fair administration of the law for plaintiffs and defendants alike. As a Justice Department representative told the committee, prosecutors need to ``maintain the ability, in certain vitally important circumstances, to obtain information identifying a source when a paramount interest is at stake. For example, obtaining source information may be the only available means of preventing a murder, locating a kidnapped child, or identifying a serial arsonist.'' As Federal courts considered such competing interests, they adopted rules that went in several different directions. Rather than a clear, uniform standard for deciding claims of journalist privilege, the Federal courts currently observe a ``crazy quilt'' of different judicial standards. The current confusion began 33 years ago, when the Supreme Court decided Branzburg v. Hayes. The Court held that the press's first amendment right to publish information does not include a right to keep information secret from a grand jury investigating a criminal matter. The Supreme Court also held that the common law did not exempt reporters from the duty of every citizen to provide information to a grand jury. The Court reasoned that just as newspapers and journalists are subject to the same laws and restrictions as other citizens, they are also subject to the same duty to provide information to a court as other citizens. However, Justice Powell, who joined the 5-4 majority, wrote a separate concurrence in which he explained that the Court's holding was not an invitation for the government to harass journalists. If a journalist could show that the grand jury investigation was being conducted in bad faith, the journalist could ask the court to quash the subpoena. Justice Powell indicated that courts might assess such claims on a case-by-case basis by balancing the freedom of the press against the obligation to give testimony relevant to criminal conduct. In attempting to apply Justice Powell's concurring opinion, Federal courts have split on the question of when a journalist is required to testify. In the 33 years since Branzburg, the Federal courts are split in at least three ways in their approaches to Federal criminal and civil cases. With respect to Federal criminal cases, five circuits--the first, fourth, fifth, sixth, and seventh circuits--have [[Page S4802]] applied Branzburg so as to not allow journalists to withhold information absent governmental bad faith. Four other circuits--the second, third, ninth, and eleventh circuits--recognize a qualified privilege, which requires courts to balance the freedom of the press against the obligation to provide testimony on a case-by-case basis. The law in the District of Columbia Circuit is unsettled. With respect to Federal civil cases, nine of the twelve circuits apply a balancing test when deciding whether journalists must disclose confidential sources. One circuit affords journalists no privilege in any context. Two other circuits have yet to decide whether journalists have any privilege in civil cases. Meanwhile, 49 States plus the District of Columbia have recognized a privilege within their own jurisdictions. Thirty-one States plus the District of Columbia have passed some form of reporter's shield statute, and 18 States have recognized a privilege at common law. There is little wonder that there is a growing consensus concerning the need for a uniform journalists' privilege in Federal courts. This system must be simplified. Today, we are taking the first step to resolving this problem by introducing the Free Flow of Information Act. This bill draws upon 33 years of experience, as embodied in the Department of Justice's regulations, the law established by the Federal courts of appeals, State statutes, and existing national security provisions. The purpose of this bill is to guarantee the flow of information to the public through a free and active press, while protecting the public's right to effective law enforcement and individuals' rights to the fair administration of justice. This bill provides ample protection for the Nation's journalists, as demonstrated by the fact that it has been endorsed by 39 news organizations identified in a list I will include at the end of my remarks. This bill also provides ample protection to the public's interest in law enforcement and fair trials. In drafting this legislation, we started with what works. Both the Department of Justice and the vast majority of journalists with whom we have met--in individual meetings and over the course of two hearings--have generally voiced strong support for the regulations that the Department of Justice currently applies to all of its prosecutors. Moreover, time has proven that these regulations are workable. The Department of Justice has been effectively prosecuting cases under these regulations for 25 years and a majority of State prosecutors carry out their duties under similar statutes. I have two concerns with the Department's regulations, however. First, under current law, these regulations do not apply to special prosecutors. Special prosecutors are often called upon in cases that are politically sensitive, may potentially be embarrassing to senior government officials, and are high profile--those cases that seem to carry the greatest risk of an overzealous prosecutor needlessly subpoenaing journalists. Second, the Department regulations are presently enforced by the Attorney General, not a neutral court of law. This places the Attorney General in a difficult position; namely, the primary check on Federal prosecutors' ability to subpoena journalists is the nation's highest Federal prosecutor. Most Americans, I believe, would feel more comfortable having the competing interests weighed by a neutral judge instead of a political appointee who answers to the President. Accordingly, this bill, in large part, codifies the Department of Justice's regulations into law; applies them to all Federal prosecutors, including special prosecutors; and provides that the courts, not a political official, shall decide whether the public's need for information outweighs the interest in allowing a journalist to protect a confidential source. The Free Flow of Information Act addresses two additional areas of considerable confusion and concern. First, it addresses the situation of a criminal defendant who subpoenas a journalist. To ensure that every criminal defendant has a fair trial, a criminal defendant has less of a burden than a prosecutor does, to show that the journalist's privilege should be waived. This is consistent with our long standing belief as a nation that a criminal defendant must be given ample opportunity to defend himself. Second, it addresses private civil litigation. This bill provides that before a private party may subpoena a journalist in a civil suit, the court must find that the party is not trying to harass or punish the journalist, and that the public interest requires disclosure. Again, this should help clarify the existing law in federal courts. Finally, the Free Flow of Information Act adds layers of safeguards for the public. Reporters are not allowed to withhold information if a federal court concludes that the information is important to the defense of our Nation's security or is needed to prevent or stop a crime that could lead to death or physical injury. Also, the bill ensures that both crime victims and criminal defendants will have a fair hearing in court. Under this bill, a journalist who is an eyewitness to a crime or takes part in a crime may not withhold that information. Journalists should not be permitted to hide from the law by writing a story and then claiming a reporter's privilege. It is time to simplify the patchwork of court decisions and legislation that has grown over the last three decades. It is time for Congress to clear up the ambiguities journalists and the Federal judicial system face in balancing the protections journalists need in providing confidential information to the public with the ability of the courts to conduct fair and accurate trials. I urge my colleagues to support this legislation and help create a fair and efficient means to serve journalists and the news media, prosecutors and the courts, and most importantly the public interest on both ends of the spectrum. I ask unanimous consent to print the list of organizations and companies that support the legislation in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Organizations/Companies Supporting ``Free Flow of Information Act of 2006'' ABC Inc.; Advance Publications, Inc.; American Business Media; American Society of Newspaper Editors; Associated Press; Association of American Publishers, Inc.; Association of Capitol Reporters and Editors; Belo Corp.; CBS; CNN; Coalition of Journalists for Open Government; The Copley Press, Inc., Court TV; Cox Enterprises, Inc.; Freedom Communication, Inc.; Gannett Co., Inc.; The Hearst Corporation; Magazine Publishers of America; The McClatchy Company; The McGraw-Hill Companies. Media Law Resources Center; National Newspaper Association; Nation Press Photographers Association; National Public Radio; NBC Universal; News Corporation; Newspaper Association of America; Newsweek; The New York Times Company; Radio- Television News Directors Association; Raycom Media, Inc.; The Reporters Committee for Freedom of the Press; E. W. Scripps; Society of Professional Journalists; Time Inc.; Time Warner; Tribune Company; The Washington Post; White House Correspondents' Association. The PRESIDING OFFICER. The Senator from Connecticut. Mr. DODD. Mr. President, let me express my gratitude to my colleague from Indiana, Senator Lugar, and his colleague from Indiana, Congressman Pence, and his colleague, Congressman Boucher of Virginia, who are drafting similar legislation and propose similar legislation in the other body and, of course, Senator Specter, the chairman of the Judiciary Committee, my colleague from New York, Senator Schumer, and the Presiding Officer for their work on pulling together this bill which is a very sound proposal. As the Senator from Pennsylvania has explained, it deals with an issue that many were concerned about, and that is the national security question. The point I would like to make is that while this is about journalists and the collection of information and revealing stories that might otherwise not be told, the real winners of this proposal are not journalists or news media outlets, television stations, or the like. The real winners are the people we represent, our constituents, and the consumers of information. This is most important for them. It is really not that significant. If it were only about journalists, frankly, we might have second questions about it. Jefferson, of course, said it better than anyone many years ago when he said if he had to choose between a free country and a free press, he would select the latter. Madison, on the same [[Page S4803]] subject, talking about freedom of information, freedom of the press, had this quote: Popular government without popular information or the means of acquiring it is but a prologue to a farce, or tragedy, or perhaps both. Today, that fundamental principle--that a well-informed citizenry is the cornerstone of self-government--is at risk in a manner in which it has not been at risk previously. In the past year alone, some two dozen reporters have been subpoenaed or questioned about their confidential sources. Most of theme face fines or prison time. Seven have already been held in contempt. One has been jailed. Another was found guilty of criminal contempt for refusing to reveal a confidential source and served 6 months under house arrest. Why? Because they received information from confidential sources and pledged to protect the confidentiality of those sources. In other words, they have committed the ``offense'' of being journalists. These actions by our Government against journalists are having a profound impact on news gathering. For example, in testimony last summer before the Senate Judiciary Committee, Norman Pearlstine, the editor in chief of Time, Inc., said this about the fallout from the Justice Department's efforts to obtain confidential information from a Time reporter: Valuable sources have insisted that they no longer trusted the magazine and that they would no longer cooperate on stories. The chilling effect is obvious. Confidential evidence may be just the tip of the iceberg. We have no way of knowing for certain the number of journalists who have been ordered or requested to reveal confidential sources. We can only speculate as to how many editors and publishers put the brakes on a story for fear that it could land one of their reporters in a spider web spun by the Federal prosecutors that could include prison. If citizens with knowledge of wrongdoing could not or would not come forward to share what they know in confidence with members of the press, serious journalism would cease to exist, in my view. Serious wrongs would remain unexposed. The scandals known as Watergate, the Enron failure, the Abu Ghraib prison photos--none of these would have been known to the public but for good journalists doing their work. That scenario is no longer purely hypothetical. It is, in some respects, already a reality. When journalists are hauled into court by prosecutors and threatened with fines and imprisonment if they don't divulge the sources of their information, we are entering a dangerous territory for a democracy. That is when not only journalists, but ordinary citizens, will fear prosecution simply for exposing wrongdoing. When that happens, the information our citizens need to remain sovereign will be degraded, making it more and more difficult to hold accountable those in power. When the public's right to know is threatened, then I suggest to you that all of the liberties we hold dear are threatened, as well. Again, I thank Senator Specter for working out this compromise, and I emphasize that the issue of national security, which was a very legitimate concern, has been handled by this proposal. The underlying issue is the right of citizens to have access to important information that might otherwise never become available were it not for the ability to have confidential sources share that information and the ability of these journalists to protect the confidentiality of those sources. Thirty-nine States have provisions dealing with the shield law. I think 10 States have regulations regarding the same matter. I think it is long overdue that the Federal Government have a similar piece of legislation to protect the kind of information we seek. I commend my colleagues for their efforts in this regard. I am happy to join them. Mr. SESSIONS. Mr. President, I say with regard to what has just taken place, these are complex areas, and we need to be careful about protecting our free speech rights. Nobody denies that. But you have to be careful, too. I was thinking that if a spy comes into our country and gets secure information and gives it to our enemy, we put him in jail, and they can be convicted, I guess, of treason. If a reporter gets information and publishes it to our enemies and to the whole world, they get the Pulitzer prize. I think we have to be careful about how we word this. I am sure we will come up with a pretty good solution. Mr. SPECTER. Mr. President, I ask unanimous consent that Senator Schumer be recognized for 4 minutes to speak on the Lugar-Specter-Dodd bill. The PRESIDING OFFICER. The Senator from New York is recognized. Mr. SCHUMER. Mr. President, I join as a cosponsor of the bill just introduced because I think it really cuts the Gordian knot. There has been a deadlock on improving the shield law for the very reason that not all disclosures by Government officials to members of the press are equal. We certainly want to protect a whistleblower. We certainly want a person, if they work at the FDA and see that tests are being short- circuited and they go to higher-ups and get nowhere, to be able to go to the press and expose it. It is a far different matter when something is prohibited by statute from being made public, such as with grand jury minutes. Frankly, that dealt with the Plame case. In both cases making that information public was a violation of law. There was a public policy against disclosure, which there is not in the typical whistleblower case. I believe the reason that the legislation my colleagues from Indiana and Connecticut put in didn't get as much support is that it failed to distinguish that difference. We need to protect the press, especially with a large Government that keeps things secret more and more. But we also have to have some respect for the fact that there are certain things that should not be made public by statute in open debate. As I said, this legislation cuts the Gordian knot. It protects those matters that should not be made public and doesn't put them under the shield of law but strengthens the protections for whistleblowers and others who might want to expose Government wrongdoing when there is no other way to expose it. This is a large step forward. It is legislation I am proud to cosponsor. I am very glad that the deadlock has been broken by this thoughtful legislation, which I now believe will garner enough support to become law. Whereas, the previous legislation, as sweeping as it was, would not. I compliment my colleagues from Indiana, Connecticut, Pennsylvania, and South Carolina, with whom I join as lead cosponsors because it is going to make our country a better place. ______