The Billings Outpost

The real scandal is what federal laws allow

One way to judge the seriousness of a political scandal is to gauge how bipartisan the outrage is. By that standard, the most serious of the three mini-scandals that swept Washington last week was news that the Internal Revenue Service was targeting conservative groups. But that wasn’t the most important scandal.

By week’s end, Benghazi remained a muddle. Even large percentages of Republicans who thought it was the worst scandal since Watergate were unable to locate what country Benghazi was in. Ambassador Susan Rice’s talking points remained, as she had acknowledged at the time, factually uncertain. Even members of Congress were reduced to debating the difference between an “act of terror” and a “terrorist attack.”

Yes, everyone agreed, mistakes were made. Sen. Rand Paul seemed to argue that everyone who makes mistakes should be fired. But mistakes are inevitable in dangerous and fluid situations on unfamiliar ground. Had he been president, Sen. Paul would have fired Gen. Grant after the first day at Shiloh. Sen. Paul likely would have wound up losing the Civil War, which, come to think of it, probably would have been OK with him.

The IRS scandal, in its most innocuous interpretation, involved overworked federal employees looking for easy ways to sift through thousands of applications for tax-exempt status. Their job was to separate applications by groups primarily engaged in “social welfare” from those primarily engaged in political activities.

If you think Karl Rove is more interested in social welfare than in electing Republicans, then the government has a job for you. But how does one sort out the Karl Roves of the world from genuine nonprofits?

The worst interpretation of the IRS scandal is that an evil and malicious President Obama ordered it directly, or that a naïve and clueless President Obama stood by while underlings hijacked the American system. Or both.

But the real scandal is the one for which the Obama administration refuses to apologize: the confiscation of Associated Press phone records in an attempt to discover who leaked classified information. Here the scandal is not that the government broke the law, but that what it did seems to have been perfectly legal.

President Obama responded to outrage from the AP and other media organizations by offering to reintroduce a federal shield law to protect reporters’ sources from government intrusion. Sen. Jon Tester, D-Mont., announced last week that he would be among the cosponsors. Most states, including Montana, have shield laws, but Congress has blocked attempts to impose a federal law.

I happen to be among what must be a small minority of journalists who oppose shield laws. My argument is simple: The Constitution protects human beings, not corporate-owned news behemoths. If journalists can be singled out for special protections, then they can be singled out for special restrictions, too.

Montana’s shield law protections are so broad that my argument falls fairly flat here. But not quite.

In 2008, for example, District Judge Todd Baugh cited the shield law in Russ Doty’s notorious libel suit against former Public Service Commissioner Brad Molnar. The judge quashed a subpoena seeking the names of anonymous commenters on The Billings Gazette’s website.

But the judge wasn’t protecting the commenters; he was protecting the Gazette, which argued that the comments were posted in the course of the Gazette’s business of gathering and disseminating the news.

The shield law does not specifically protect bloggers, commenters, Facebook friends, Tweeters and other spinoffs of the electronic age.

Such outlets didn’t exist when I first formulated my opposition to shield laws, but now it can truly be said that we are all journalists, and shield laws should protect us all.

Legitimate concerns exist that government actions in cases such as the AP’s have a chilling effect on reporters. But professional reporters ought to be made of sterner stuff. The real chilling effect is on sources who may be intimidated into refusing to pass along information so Americans can know what their government is up to.

In the AP’s case, the member-funded organization not only made a strong statement condemning the government’s actions, but it also drew the outspoken support of dozens of other major news organizations. Almost immediately, the government began to back off, as it should have.

But who will speak out for the thousands of unpaid bloggers who make up an increasingly important part of daily news coverage? Or, for that matter, WikiLeaks, which has made its reputation by leaking government documents?

The Obama administration has been surprisingly vigorous about going after government whistle blowers and leakers, including a Fox News reporter whose emails were subpoenaed after he reported on North Korean nuclear tests.

The reason why Obama has been so tough isn’t thoroughly clear; the president’s actions hurt his standing with liberals and do nothing to make conservatives like him any better. The president is carrying on, and in some cases expanding, bad precedents he inherited.

In a letter to Attorney General Eric Holder, Sen. Tester wrote, “Since the enactment of the USA PATRIOT Act we have seen respect for civil liberties diminish … [T]his steady erosion of civil liberties has too often been bipartisan in nature.”

The senator is correct. Adding a shield law won’t fix the problem. The civil liberties of all Americans are at risk, not just those of reporters.


Copyright 2012 Wild Raspberry Inc.

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