The FFIA creates a highly problematic journalist’s privilege. It would effectively prevent the federal government from compelling anyone “engaging in journalism” to give testimony or produce any document revealing that journalist’s source, if the source gave the information under cover of confidentiality.

Were S.2035 to become law, investigators and prosecutors charged with bringing to justice sources who have engaged in criminal leaks would have to prove all of the following to the satisfaction of a federal judge: (1) The government has first exhausted all other avenues besides the journalist to obtain a source’s identity; (2) there are reasonable grounds to believe that a crime has taken place; (3) the source’s identity is “essential” to the investigation; (4) the information that was disclosed was “properly classified” to begin with; (5) the person who leaked the information had authorized access to it; (6) the source’s unauthorized disclosure “has caused or will cause significant, clear, and articulable harm to the national security; and (7) non-disclosure of the source’s identity would be contrary to the public interest when weighed against the other public interest in “gathering news and maintaining the free flow of information.”

As a practical matter, as an array of Cabinet and subcabinet officers responsible for keeping us safe and enforcing the law have warned the Senate, no source is going to be held accountable under this law. For example, Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell advised the Senate’s leadership they would be hobbled by myriad Catch-22s inherent in the FFIA.

Consider two of these cited by the AG and DNI: How can a prosecutor show that a person who leaked information had authorized access to it (Requirement 5), without first knowing the identity of the source? How can a prosecutor show that a leak “has caused or will cause significant, clear, and articulable harm to the national security” (Requirement 6), without first having to offer evidence to a judge that will reveal even more classified information?

By assuring “journalists” – the bill’s definition is broad enough to cover all of the first three categories described above – they need not fear having to divulge the source of a leak, sources will feel even less compunction than they do today to break their promises and leak with impunity.

In short, the Free Flow of Information Act is not about freedom of the press. It is about freeing government officials of their legal responsibilities and enabling those who would do us all harm – whether intentionally or in the name of “the people’s right to know.” The President’s senior advisors have rightly indicated that they will recommend his veto should this bill make it to his desk. Senators should ensure that the Leakers and Other Enemies Protection Act never gets there.