that government officials find various ways to get out classified information -- that they find it useful to their political or bureaucratic interest to get out into the public domain, making a mockery of our secrecy laws and making it virtually impossible, in this case, for the government to simply use the classification standard as a ground for prosecuting somebody. . . >> if i may, i agree that there are laws and rules of engagement. i wonder if those rules are changing without the explicit acknowledgement or agreement of those parties. the press has documented a skyrocketing number of subpoenas against journalists where, for decades, the rules of engagement were that we would only subpoena you in a special case. if this is a case that is vital, those rules have seemed to have changed. but i agree with you in practice, i do not think that it is safe to rely on that. >> the whole question of journalist sources and subpoenas is a very interesting one. you are right. there was not an accommodation. people read brandenburg. it was written late one evening. it was going one way and then it was going another way. our colleague from the new york times finally wrote something called "bransburg in the emerging protection for journalistic resources. i am not doing criminal law, here. some of this is criminal and some is simple. at but what they finally came up with was an accommodation that worked. it worked. we have to come up with -- you have to come up with a new accommodation. the accommodation that worked was that they had a qualified privilege that was recognized. it was a common law of privilege. sometimes they call that a constitutional privilege. the privilege was very simple. we can subpoena journalists, but only if we prove, first, that is relevant, it goes to the heart of the case, and one would think that is overlapping, and third, you cannot get any other source. that is a very simple thing. unless you can prove that you really need it, then you cannot get a journalist source. that sounds like a pretty easy thing. you -- it worked, but the reason it worked was because journalists are generally witnesses. big deal with here say. they are reporters. they deal with here say. they know all of these things, and all of which can be discovered by a decent lawyer with a subpoena. they never, ever got -- i spent 30 some odd years worried about the subpoena. but could never get through the test. there was always some other way that they would go and find out who your source is and they would subpoena them and give you the information. where it broke down was where people started to worry about leaks. the reason that this was all broken down is because leaks are separate and different. you are an eyewitness to the crime and you were the only eyewitness to the crime and they got to the position where they could fulfil this test. they would find out who leaked and then they would subpoena that. they dealt with successive drafts of legislation could what do we do when a journalist is witness to a crime and that crime is looking osh is leaking -- is leaking. the draft that i have seen of the shield legislation in the senate is at the first that i have ever seen that has two pages. and they have many paragraphs that the one to try to define, in a reasonably modern way, rather than saying "the medium." the rules of engagement work. in the judith miller case, one of the question was who leaked. that is when it all broke down. >> the accommodation and the rules of engagement, much of the presidents of the past -- the precedents of the past, many of the television networks had great power, wealth. they were making a ton of money. they were very secure. they were willing to spend money. they enjoyed a great deal public support. for example, in the pentagon papers case, the public was overwhelmingly in support of what the times was doing the very quickly -- * was doing. -- was doing. they were very foolish for having tried to get these injunctions. no one was paying any attention to the pentagon papers until they made a big issue of it and in every newspaper and broadcaster in the country was focusing on the pentagon papers. the thought that the government was hiring -- hiding something important. my question is, is that all passe? mainstream media is not rich anymore. did not seem to feel very rich. the government does not seem to quake in its boots anymore when the new york times or the post is about to say something. i am not sure that the public is that clearly on the side of the media anymore. does that change the equation as to this adversary role that exist between the government and the media? >> we are not rich. we are not powerful or popular. that is all true. but knowledge. -- acknowledged. i think all of that is true. i have not noticed a change in how we go about stories or whether or not to print. i do not think that -- particularly on the concerns over wealth, we could get wrapped up in legal battles that will bankrupt the paper. if those concerns are real happy times, -- are real at the "times," at least i have not felt any pressure not to pursue what we are pursuing because of any of those three reasons. >> look, as mark said, it is true that we are not as powerful as we used to be or as popular. but the folks in power still do care what we write were put on the air because they care about their political standing at the time. just look over the last couple of weeks how much the barack obama administration has really worked hard to shake coverage of how it handled the christmas bombing incident. they were really concerned about what we all were riding -- writing. it would dramatically change politics in congress on national-security issues, to the point where i mentioned before that the various white house over the years will use classified information to protect its political interests. the other night, i found it interesting when they hastily called reporters to disclose that the nigerian suspect was cooperating and didn't disclose information about the kinds of things he was cooperating with. that is easily the kind of information that, in another context, if i asked, they would tell me that that was classified and that they could not tell me of what he was telling them. yet, that is precisely what they did. they were trying to show that they should have made the guy a enemy combatant. i want to know as much as i can about that, but that is precisely the kind of classic example of how they made a decision to disclose information where they would have otherwise told us it was classified. >> i want to make an observation on behalf of the new media that is not here. just as we, the traditional media, we pride ourselves on being authoritative credible. i think that is in part because the new media depends on government or official sources for a lot of our news. so, and there were a number of recreations of how the white house came to the decision around leaders -- or around new year's. i think that the washington post in the "l.a. times" did take out. they did some analyses of those stories and they pointed out how those stories were straight from the mouth of a handful of approved white house sources or officials who basically wanted to get their point of view out. there was unprecedented access to reporters. they would get these big front- page sunday stories. i was not reporting on that, but i read them and i thought that they were well britain stories. -- well-written stories. i thought that we might get manipulated because of our position and our authority. >> there was a front-page article, and the question that was raised was whether courts, which are presumptively open, have not been closed for more than they used to because the traditional media will not spend the money to keep them open. that was his question. >> one question about the mainstream media questions. if the power goes, things look pretty bleak for newspapers for not migrating successfully into cyberspace and broadcasting seems to be in trouble, too. if the power and wealth of the mainstream media continues to decline, who will play the watchdog role that powerful media adversaries of the government have played for the last 60 years? >> there was a congressional hearing on this issue where the creator testified and he said that the next 20 years are known to be a terrific time for corruption in local and state governments. his point is that there will always be people to cover congress and the white house, but the wisconsin public legislature? maybe not. people will not spend a month doing an exhaustive analysis that the normal newspaper would hang a reporter over deep-seated corruption. i do not think that anyone will do that sort of investigative work anymore. >> i agree and i think that is the primary problem. i think that the big guys will be ok. we will figure out a way to monetize that, probably through pale walls -- pay walls. it will take some time i started my career working for a local television station in orlando. local television news but -- does not always have the best reputation. there was an investigative reporter and an action reporter that did consumer stories. now, they're no longer is. -- they're no longer is. they require more time to put the story together. unfortunately, this is one of those things where i see the problem and i do not see the solution. david simon is probably right. on a national level, monica comes to national security and intelligence, i do not see that as a problem. i think there will be another big organizations and i think we will have enough power and wealth and influence and popularity. the government is not necessarily as rich and powerful for trusted by the people. we are not necessarily in an adversarial relationship, it is not necessarily a zero sum game. just look at the associated press and their state and local coverage. it is very disheartening. if anybody has a solution to that, you will be rich beyond your wildest dreams if you can figure that out because i think that is the major gap in journalism. >> i am sure that we have people out there in the audience that are dying to ask some questions of these panelists. is that all right to go to questions? >> yes. bucs all right, go ahead. what i wanted to follow-up on the discussion from earlier about the increasingly threatening moves by the federal government in the last decade or so as to whether they are changing the rules of engagement to legal maneuvers. you mentioned the apac case. i was heartened to hear that sound like the consensus was that it cost too much of a chilling affect. what about possible other sources and whether you would imagine a chilling affect following that? are you seeing a ratcheting up by the federal government, especially since 9/11, not only directly against journalists, but towards whistle-blowers within or outside of the government? it looks like that is another area where the government has been trying to send a stronger prosecutorial message. there were moves that the government made, for instance, in the one case. i am curious if you have the impression that the government performing some saber rattling? are you seeing more intimidation among sources or potential sources? the second question, it is sort of heartening to hear the threat of espionage prosecution has not seen the chilling to those on the panel. i believe in 2000, both houses of congress did vote to approve an act which would go further than the espionage act. it would automatically criminalize that information. president clinton vetoed that. the second question is more hypothetical. if they were to make a strong statement like that an president obama sign that -- signed it, but it said more of a chill through the organization's? -- through the organization's? -- organizations? >> let's call it a leaker. the question is, which side of the line is that on? i am not so sure. here goes my reputation. i am not so sure that making government employees keep secrets is not precisely what they are supposed to be doing. once the secret gets out, it is when we talk about being on this side and on that side. >> my impression was affirmed by the previous statement of the journalism linking -- journalism leaking you have people leaking from the local government. putting aside weather is good or bad, if that is the premise, the question could be phrased the script -- a descriptive leaper it is it true that government has been taking a harder line? if so, are you seeing more reluctance? >> there have been a lot of investigations of leaders and -- of leaderkers and whistle-blowe. i am actually not aware of prosecutions. i may be forgetting something. the investigations themselves become intimidating. this is to everybody around the whistle-blower. this is a way by which the authorities put the fear of god and to employees about what could happen to them. there is one other point about the threat to journalists. i know something about this because i have been in the middle of it. the real threat from subpoenas to journalists over the last few years has not been the criminal arena, it has been the civil arena. when lawsuits are brought by people in which they try to smoke out the sources of journalists, we had a very damaging opinion in the d.c. circuit that forced the new york times to settle rather than have the reporters go to jail to protect their sources. that was then copycat in the steve and hatfield case -- the stephen hatfield case. it has been really bad for journalists. from what i know, that has been the biggest threat to reporters and their source relationship. >> the government is increasingly finding it difficult to prosecute leakers. and officials first task is to come up with a more administrative internal solution to prevent leaks. obviously, it is something that the government is concerned about. there is difficulty in convictions. what that also means is that the investigation part of it does not have a deterrent effect that they want. the other thing is that the new reporters that are living in this regime are using tricks as far as what they do with their notes. you can anticipate that, six months down the road, someone might want to see your notes. again, you do not want to do it after you get a subpoena because that would obviously not be legal. but, journalists are taught ways reduce the chances that if the sapida was brought forward, the evidence would be turned over, but it would not be as much as you would think because information would not be communicated in ways that were necessarily retrievable by a subpoena. it absolutely does have a chilling affect, -- a chilling effect. but the point about the civil suits and the case law is something that i have not quite considered. i agree that it is troubling. i believe that there are six that are up our sleeves that meant that slightly less threatening, particularly now that we have a general sense of the larger picture. again, i am not advocating that reporters destroy their notes. >> just briefly, as an outside the beltway person, your bias -- you are biased by your experience. you say that you are not worried about civil suits. we were mostly were about civil suits. would you go in there and you are sued for defamation and reporter comes in with a stack like this and says that you said this and this and this pimm this -- and this, you do not have recollection of the source problem. a reporter wrote a story and a few weeks later, they fired one of their vice-president and it was not the source. they thought it was the source, but it was not the source. what is a reporter do about this? >> one thing that i do is that i will put source on a hot dinner receipt and not the name of the source. if anybody has questions, they can come to me and i can verbally tell them. you can argue in some way that i am anticipating -- >> i think that corruption of justice is the word you are looking for. >> i have no pre consciousness of guilt. -- pre-consciousness of guilt. i would assume that most reporters have a version of the same thing. we do it for a very specific reason. it affords -- if protect us from a paper trail that, down the road, we may not want to disclose. >> maybe i revealed something here. i could be sued by the journalist court. >> i just wanted to say that this is a great, experience panel. i am worried about the changes in journalism and having people bought out and reporting news releases. leaving that aside, i in interested in hearing more about your experience between the legislative branch of the executive branch. the legislative branch is very constrained and fearful of having meaningful conversations to try to rebut or respond to what the executive branch is saying. i am sure that it affects the way that the information is conveyed by you wall. invariably, we end up in a situation where we are happy to be called, but often it is the >> of a naysayer. -- it is the >> of a naysayer. -- is the quote of the naysayer. the legislative branch cannot talk to us and the executive branch just holds most of their cards. i am wondering if you can talk about this issue of these legislative branch reverses the executive branch and the types of access that you have or do not have. >> i think that that is a generally true observation. from my minimum experience, the observation that congress -- some members of congress, in general, seemed to be extremely reluctant, not just about these types of decisions, but about anything sensitive relating to the executive branch, where as the executive branch seems to hold many of their cards and they seem to be -- i do not know what to do about it or if there is anything to be done. it may reflect the structural imbalance. speaking of the executive branch. >> i see this on a daily basis. there is a growing plethora of web sites and journalists who are essentially one guy with a computer. how, in fact, as we talk about media shield laws, with the growing number of people that call themselves journalists, how will you define what the media is, going forward? who was courted to be credential and these folks? -- who was going to be credential and these folks -- who is one to be providing these folks with credentials? that is a discussion that we have to have, considering future interaction. i guess that would leave you with another example. one man was indicted in boston and he had been a blogger for most of the year. he would to be a part of all qaeda and ultimately return home. could he be considered a member of the media, going forward? i just want to speak about going forward when we talk about legislation. who will be defining this? >> most of my proposals at a national security exemption. -- pat and national security exemption. we need to start with -- have a national security exemption. we need to start with defining what the national media is. if you haven't read that, start there. it is a very interesting thing. i was on a panel where i found out it is harder to moderate that it is to sit and tell stories. we were on a panel with patrick fitzgerald. he had a wonderful story about gains in chicago and one of the gangs poverty figure out -- one of the gains cleverly figured out how to hijack a low-power christian radio station. if you would to a certain part of the city, all of a sudden, got disappears and there is a voice that comes over and tells you that the cops are over here and at our game is here and there is a group of us over here and there are drugs being sold over here. the authorities were trying to figure out if they were media or not. dave will always come up with something. >> -- they will always come up with something 3 >> -- something. >> one guy described himself as an archivist and people kicked over newspaper boxes and some how, a police car was set on fire. since part of the police car was paid for with federal m