Deputy Attorney General James Comey canceled his appearance before the Senate Judiciary Committee just before a hearing on this issue was to commence Wednesday morning. In prepared remarks already submitted to the panel, Comey said the measure would "create serious impediments" to the Justice Department's ability "to effectively enforce the law and fight terrorism."
"The bill is bad public policy primarily because it would bar the government from obtaining information about media sources — even in the most urgent of circumstances affecting the public's health or safety or national security," Comey's prepared remarks said.
"If that is so," said Sen. Christopher Dodd, "then wouldn't we expect to see great threats to public safety in those states that have shield laws which are at least as protective as the shield laws that we propose?" Dodd, D-Conn., is a consponsor of the Senate bill.
Thirty-one states and the District of Columbia have such "shield" laws, but there is no set of standards that applies in federal courts.
Sen. Arlen Specter, the panel's chairman, said that Comey could not be present for the hearing because he needed to testify in the House at a hearing on the renewal of the terrorism-fighting Patriot Act.
The panel is considering a bill sponsored by Sen. Richard Lugar and Rep. Mike Pence, both Indiana Republicans, that would protect reporters from being imprisoned by federal courts.
Two weeks ago, a federal judge sent New York Times reporter Judith Miller to jail for refusing to divulge who told her that Valerie Plame, the wife of former Ambassador Joseph Wilson, was a CIA officer. Miller never actually wrote a story using the name of the formerly undercover CIA officer.
Pointing to broader implications, the special prosecutor in the Plame case, Patrick Fitzgerald, said earlier this month that "we can't have 50,000 journalists" making their own decisions about whether to reveal sources.
The bill would stop short of giving reporters absolute immunity. In response to a request from Justice, the sponsors added an exception for cases where source identification is essential for protecting national security.
"It simply gives journalists certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment, much as, in the public interest, we allow psychiatrists, clergy and social workers to maintain confidences," Pence said in prepared testimony.
A journalist who did publish Plame's identity, Time magazine's Matt Cooper, barely escaped being sent to jail when he said his source, Rove, had released him from their confidentiality agreement. He told the committee that protecting reporters and their sources is key to the media's ability to shine light on government wrongdoing.
"It's not about us journalists as some priestly class but it is about the public and our democracy," Cooper told the panel in prepared remarks.
The patchwork of state shield laws and the absence of a federal statute makes it confusing for reporters promising sources anonymity in exchange for information, Cooper said.
"We need some clarity," he said. "As a working journalist, I'd like to know better what promises I can legally make and which ones I can't."
Also testifying were Time magazine Editor in Chief Norman Pearlstine and media lawyer Floyd Abrams.
A storm has raged around the leak of the CIA officer's name in July 2003.
President Bush said Monday that if anyone in his administration committed a crime in connection with the public leak of the identity of a CIA operative, that person will "no longer work in my administration." The statement came a day after Cooper said a 2003 phone call with Rove was the first time he heard about the wife of Bush administration critic Joseph Wilson apparently working for the agency.
Disclosure of an undercover intelligence officer's identity can be a federal crime if prosecutors can show the leak was intentional and the person who released that information knew of the officer's secret status.
Plame's name was disclosed in a column by Robert Novak days after her husband, a former ambassador, questioned part of Mr. Bush's justification for invading Iraq. A federal grand jury is investigating whether a crime was committed.
U.S. District Judge Thomas Hogan held Miller and Cooper in contempt in October, rejecting their argument that the First Amendment shielded them from revealing their sources. Last month the Supreme Court refused to intervene.