William F. Smith: “H.R. 2102 presumes that a journalist is entitled to a reporter's privilege unless the government can show a court…”

“H.R. 2102 presumes that a journalist is entitled to a reporter's privilege unless the government can show a court otherwise. The government can only do this by meeting certain threshold requirements set forth in the bill. After all those requirements are met, the judge must then apply a balancing test. The judge must find that 'the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.' My motion to recommit provides further guidance to the judge as to what criteria should be considered in weighing that decision. The motion to recommit simply states that the judge may consider the extent of any harm to national security. It does not dictate any result. The manager's amendment partly addresses this issue by creating an additional exception to the privilege that excludes from the privilege leaks of classified information that harm national security in criminal cases. I agree with that idea as far as it goes. This motion to recommit, though, goes further. It allows the judge to consider this factor in any case, not just a criminal case. It allows a judge to consider any leak that harms national security, not just a leak in violation of the laws on classified information. There are many kinds of information that can harm national security. One example is grand jury information.”