Randall D. Eliason suggests in his opinion piece, "Shield Law Not the Answer to AP Flap" [ NLJ, May 27], that enacting a shield law in response to the federal subpoena of Associated Press telephone records would be a "feel-good gesture that makes little sense." He argues that the shield wouldn’t have and shouldn’t have protected the records at issue, which involved a story on a bomb plot in Yemen foiled by the CIA, and concludes that if "safeguarding classified information is important enough to warrant prosecution, why would we also pass a law making that crime almost impossible to prove?"
What he misses is this: The public’s interest is not always consistent with the government’s interest in prosecuting crime, and it is perfectly acceptable that in some cases, government prosecutors can be restricted in their efforts, even to the extent of not finding the source of unauthorized disclosures, in the name of accountability to the public. Eliason, as we would expect from a former federal prosecutor, comes down squarely on the side of prosecuting unauthorized disclosures. But the noblest thing that any government can do is recognize limits on its own power. During the past decade, the public discourse over national security issues has risen dramatically, while the government’s efforts to conceal information has ballooned even more. It is inevitable that many issues of legitimate public interest will be understood only if some information "relating to the national defense" (the standard from the Espionage Act) is disclosed in apparent violation of the law.
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