He Could Make a Big Difference

By the time his term ends in January 2011, Arnold Schwarzenegger may well have experienced the worst fiscal environment of any California governor since the Great Depression—much of it bad luck, some of it his own doing.  But he can still make a positive, indeed historic mark in keeping with some of the most encouraging promises in his 2003 campaign to replace Gray Davis.

To the degree that his ambitious platform proposed programs relying on any substantial new spending, the state’s budget deficit—now estimated at $16 billion for the coming fiscal year—is prohibitive.  It’s also widely sensed that the state is entering a recession, and perhaps even a stagflation, likely to drive down tax revenues for much of the remaining Schwarzenegger years.

Nonetheless, in considering what the Governor can accomplish in a positive way, we should remember that in his 2003 campaign he pledged "to throw open the doors and windows of government," commenting in one speech, "There’s no such thing as democracy in the dark."   

His “open government reform plan” included a commitment to add the Legislature (which had exempted itself) to a constitutional amendment mandating open government records and meetings of official bodies.  But that commitment was quietly dropped.

The Governor also takes credit for giving the press access to his appointment calendars, but his office began to provide them—in edited form—only when it appeared that a lawsuit for them might be in the offing.

More typically, last fall the Governor vetoed a modest bill—AB 1393, which Californians Aware sponsored—that would have allowed citizens to file public records access requests on every state agency’s website, with follow-up contact information.  His veto message stated,

Ensuring access to public information is one of my Administration’s top priorities.  That is why last year I issued Executive Order S-03-06, requiring all state agencies to review their guidelines governing access to public information.  In addition, the Order required that every agency identify and train staff to be responsible for ensuring compliance with the California Public Records Act.

The Governor neglected to mention that his executive order was issued only 15 days after Californians Aware released the results of its executive branch audit showing that the average score among 31 key state agencies was only 37 percent compliance with basic, undisputed requirements of the California Public Records Act. 

All in all, then, contrary to his stated commitment, Governor Schwarzenegger has not been a champion of openness.  He has not shown leadership in this area and has in fact consistently vetoed open government legislation that would affect state agencies subject to his control.

If the Governor wished to have a lasting and positive legacy in California history despite the budgetary and greater economic constraints he seems likely to remain saddled with, he could take action to sponsor a bill creating a state open government commission. 

On Californians Aware’s website over the past year an admittedly unscientific open-ended survey has been indicating overwhelming dissatisfaction with the current situation, in which “enforcement of the open meetings and public records laws is now almost entirely left up to private lawsuits.”  There are 334 responses as of this writing, more than two thirds of which agree that there needs to be some public office or officer authorized “to investigate complaints, order correction of violations, and provide training.” Of these, about 26 percent preferred “a statewide commission” as the enforcer, about 24 percent local district attorneys, and about 18 percent the Attorney General. Only about 23 percent opted to leave the situation as is.

There is one clear precedent for a statewide body of the kind described in the survey.  The Connecticut Freedom of Information Commission, appointed by Governor Ella Grasso in 1975, has five members, a staff of 20, and recurring operating expenses last year of $1.7 million—lean and mean by anyone’s measure. On the enforcement side, the FOI Commission hears complaints from those denied access to meetings or records of public agencies, holds hearings on the complaints and will then can either dismiss the complaint, order release of a record or nullification of a meeting action, or assign the matter to mediation with a Commission staff attorney acting as ombudsman.  The Commission attorneys can also defend its orders if challenged in court.  On the training and education side, the Commission conducts educational workshops and speaking engagements for public agencies throughout the state.

Governor Schwarzenegger would not need to sponsor such legislation; it would be enough if he would sign it.  But if he really meant what he said when, during the recall campaign, he became the first gubernatorial candidate in California’s history to make open government a specific plank in his platform, this is one achievement that his name would always be linked with, with gratitude.

Public Forum Law Week in Review: 2/25/08

(CalAware Weekly comprises this plus the previous three posts)

Free Speech

First Amendment Seminars Soon at UC Davis      The University of California, Davis has announced that some of today’s most prominent legal minds will lead discussions on the First Amendment, with all of its constitutional complexities and interpretations, at free campus events Feb. 26 and March 7.

Racist Fliers Leave Vacaville Disgusted       The Reporter newspaper reports that two days after an onslaught of racist literature littered about 200 driveways in Vacaville, residents remained up in arms about the incident and police were struggling to determine whether the distribution, however offensive, was in fact a crime.

Border, Airport Searches Raise Alarms     A legal analyst discusses the constitutional dimensions of the government’s routine searches at borders and airports of travelers’ laptops, cell phones, Blackberries and MP3 players—a practice that could violate both freedom of speech and freedom from unreasonable search.

UCSF Medical Center Bars Union Leafleting     The UCLA Daily Bruin reports that University of California officials plan to appeal a temporary restraining order obtained by the American Federation of State, County and Municipal Employees barring the university from stopping union members from leafleting in certain areas at UC medical centers. 

Judge Again Finds No Right to Anti-Gay T-Shirt   
    The Student Press Law Center reports that a federal judge has for the second time that the Poway Unified School District did not violate a former student’s rights to freedom of speech and free exercise of religion when officials punished him for wearing an anti-gay T-shirt. In 2004, Tyler Chase Harper was detained for wearing a T-shirt to Poway High School that said, "Homosexuality is shameful. Romans 1:27" on the front and "Be ashamed. Our school has embraced what God has condemned" on the back. Harper wore the shirt the same day a student group observed a "Day of Silence," an annual event that fights harassment of homosexuals.

Bill Would Punish Berkeley’s Slap at Marines    The Philadelphia Bulletin reports that proponents of the Semper Fi Act, which would cut off federal earmarks for Berkeley institutions in reaction to the city council’s recent swipe at Marine recruiters, argue that the measure is not about speech, but recognizes the fact that the exercise of rights is never without consequences.

Open Meetings

Board Sued for Sitting on Grand Jury Retort       The Santa Cruz Sentinel reports that the Pajaro Valley Unified School District board has been sued under the Brown Act for failing to provide the public with copies of a rebuttal to a highly critical report by the Santa Cruz County Grand Jury in a timely fashion.

Closed Session Transcript Yielded to State Bar       10News in San Diego reports that the City Council has voted unanimously to turn over to the State Bar of California the transcript of a 2005 closed-door meeting during which it discussed City Attorney Michael Aguirre’s authority to file litigation over San Diego’s pension system. State bar officials want the documents to determine whether Aguirre overstepped his authority to file a lawsuit challenging the legality of pension benefits without the City Council’s authorization.

Secrecy Faulted in Police Chief’s Departure       The Pasadena Star-News  reports that the Baldwin Park Police Association says it has filed a complaint with the Los Angeles County District Attorney’s Office, accusing the City Council of violating open-meeting laws by firing Police Chief Edward Lopez in closed session and then not reporting it publicly.

Official Wants Brown Act for Charter Schools
     The San Bernardino Sun reports that the county superintendent of schools hopes to find a legislator to sponsor a bill that would require charter schools to comply with conflict-of-interest laws and follow the Brown Act.

Free Press

Anthrax Investigation Reporter Held in Contempt    The New York Times reports that a federal judge has held one of its former reporters in contempt of court for failing to identify sources who named former Army scientist Steven Hatfill as a possible suspect in the 2001 anthrax attacks that killed five people. U.S. District Judge Reggie Walton said he would begin fining Toni Locy $500 per day, escalating to $5,000 per day, until she identifies the sources.

High Court Lets Stand Ruling for Student    The San Francisco Chronicle reports that the U.S. Supreme Court has rejected an appeal by Novato school district officials found to have unlawfully confiscated a student newspaper because of an editorial urging that any Latino who couldn’t speak English be detained as a probable illegal immigrant.

Court Won’t Order End to “Phat Pink” Blog     The Redding Record Searchlight reports that a court commissioner has ruled that a blog called “No Phat Pink Chicks” that mocks one of its reporters may be "rude and boorish,"  but it’s allowed under the First Amendment.

Public Information    

Watchdog: Meat Recall Alert Law Not Working
   ConsumerReports.org fears that California’s two-year-old law to bring more transparency to meat recalls is not working to give the public information on the biggest recall in history.

Public Pay: Was There a SLAPP in a Union Suit?
      The Associated Press reports that a state appeals court is considering whether a Marin County government workers’ union filed a SLAPP suit—which could force it to pay a newspaper’s attorney’s fees—when it persuaded a trial judge to block the release of public employee salary information to the paper.

Bill Would Identify Governor’s Judge Selectors
        The Recorder in San Francisco reports that Assemblyman Mike Davis (D-Los Angeles) has introduced legislation that would force Gov. Arnold Schwarzenegger to reveal the identities of his secret judicial applicant screeners.

Bill Would Speed Court Records Access Disputes    The California Newspaper Publishers Association reports that Assemblywoman Noreen Evans (D-Santa Rosa) will introduce legislation this week on its behalf to reduce delay in court records fights by eliminating appeals of orders to unseal court records that were improperly sealed in favor of more rapid writ review.

Newspaper Seeks Complaints about Coaches    The Redding Record Searchlight reports  it is dissatisfied with a school district’s minimal production of documents dealing with parental complaints about two teachers recently relieved of their positions as football coaches.

Public Records Disclose . . .

  • Gov. Arnold Schwarzenegger is dramatically overestimating the jackpot the state could collect if it sold the rights to operate the lottery to an outside company, according to confidential Wall Street analyses;
  • Even as the Los Angeles Department of Water and Power again pushes to raise water and electricity rates, the nation’s largest municipal utility continues to provide  take-home vehicles to 117 managers and supervisors.

The New York Times provides the most thorough early account of a federal judge in San Francisco recently ordering the disabling of a website devoted to disclosing leaked confidential documents, “in a move that legal experts said could present a major test of First Amendment rights in the Internet era.”  The best recent report on what information a Swiss bank wanted kept secret and who’s behind Wikileaks has been done by The Guardian  in England, where the website is based.

For technical reasons the judge’s order did not and could not entirely block access to Wikileaks.  But the fact that the judge tried to do just that, and believed he had the authority to do so is astonishing, given that the very first case in the United States Supreme Court invoking the First Amendment as protection for the press and declaring the constitution’s repugnance for prior restraint involved—at least for its day—a very similar annihilating spirit.

Near v. Minnesota, 283 U.S. 697 (1931), involved a state law that allowed officials to shut down (“abate”), as a “nuisance,” scandal-focused publications that offended those in private prominence or public power.  Minneapolis officials used the law to close a tabloid of just that character published by a man described by a historian of the incident as "anti-Catholic, anti-Semitic, anti-black and anti-labor." In the words of Justice Charles Evans Hughes for the Supreme Court, the last straw was added when the newspaper’s

articles charged in substance that a Jewish gangster was in control of gambling, bootlegging and racketeering in Minneapolis, and that law enforcing officers and agencies were not energetically performing their duties. Most of the charges were directed against the Chief of Police; he was charged with gross neglect of duty, illicit relations with gangsters, and with participation in graft. The County Attorney was charged with knowing the existing conditions and with failure to take adequate measures to remedy them. The Mayor was accused of inefficiency and dereliction. One member of the grand jury was stated to be in sympathy with the gangsters. A special grand jury and a special prosecutor were demanded to deal with the situation in general, and, in particular, to investigate an attempt to assassinate one Guilford, one of the original defendants, who, it appears from the articles, was shot by gangsters after the first issue of the periodical had been published.
    If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter—in particular that the matter consists of charges against public officers of official dereliction—and unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is punishable as a contempt. This is of the essence of censorship.
    . . . the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government . . . These limitations are not applicable here . . .

(Emphasis added)  Despite Justice Hughes’s refusal to call the rule against prior restraint absolute, in the 77 years since Near the Supreme Court has been confronted with only a handful of prior restraints and has struck down all but one of them (the proposed broadcast of a confidential phone conference between imprisoned former Panamanian dictator Manuel Noriega and his attorney).  Otherwise, the court has held unconstitutional measures taken against the press to prevent publication of:

  • the Pentagon’s classified history of the Vietnam War, during that war, because the government was not able to meet its “heavy burden of showing justification for the imposition of such a restraint” on national security grounds. New York Times Co. v. United States, 403 U.S. 713 (1971);
  • information about a sensational capital murder case the public disclosure of which might deny the defendant a fair trial, since the trial court had not made express findings that the no-publish order would be effective in averting the feared prejudice, and that all procedural alternatives to protect the defendant’s Sixth Amendment rights would be inadequate or unworkable. Nebraska Press Association v. Stuart, 427 U.S. 539 (1976); and
  • an injunction issued by an Oklahoma judge, ordering the media not to publish the name or photograph of an 11-year-old boy obtained in a rare open proceeding, in that once the court  had placed the identity information in the public domain by admitting the press to the proceeding, it could not then forbid its dissemination. Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977).

Note that in all four of these prior restraint cases, the challenged orders purported only to forbid the publication of particular information whose release would be irretrievably damaging to the public or private interests.  In contrast, Judge Jeffrey S. White’s order harks back to Near v. Minnesota‘s publication "abatement" in its totality. Dynadot, the American company conveying Wikileaks to the Internet by providing its domain name was told, effectively, to shut the website down—and surrender all related records.  A second order issued the same day focused on the bank information that the plaintiff sought to keep secret, and ordered Wikileaks to remove it from any of its websites. 

A full hearing on the orders was set for the leap year day this Friday, February 29, and if the court does not withdraw the prior restraint elements of both orders, they are destined for almost certain reversal in the U.S. Court of Appeals for the Ninth Circuit.  If the matter were then to go to the Supreme Court, an interesting footnote might be that in the Noriega case—the sole instance in which the court has permitted a prior restraint to stand—a Deputy Solicitor General who co-wrote the brief for the government seeking that result was John G. Roberts, Jr., now Chief Justice.

Protecting Advisors to the Student Press

California law provides students greater free speech and press protections from school censorship than does the First Amendment.  As interpreted by the U.S. Supreme Court, for example, high school student newspapers can be prevented by school administrators from publishing a story concerning teen pregnancy, for a variety of reasons (Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988)).  The court conclued that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

In contrast, California Education Code Section 48907 dictates that high school student journalists can almost never be disciplined for saying or writing things in news reports, editorials or other forms of of official school communication that would have free speech or press protection off campus; if they are,  they can sue the school district to have the discipline reversed (and their records cleared), and have the district pay their attorney’s fees reimbursed by the district.  Similar laws protect college and university students.

In addition to protection from punishment after the fact, California makes the Hazelwood case of little moment by providing, in Education Code Section 48950, that student journalists cannot be prevented from printing in official school publications whatever they decide is appropriate news, comment or other expression, with the sole exception of material that would expose the district to a successful libel suit, that constitutes not just vulgarity but actual obscenity, or that creates the clear and present danger of inciting serious disruption or lawlessness.  This law also protects against such prior restraint any student expression found in whatever medium—speeches, posters, fliers or Internet postings. But when it comes to the school newspapers, the student editors are given the sole authority over topics to cover or opine about, with the faculty advisor responsible only “to supervise the production of the student staff, to maintain professional standards of English and journalism, and to maintain the provisions of this section.”

However, as veteran high school journalism teacher and newspaper advisor Janet Ewell
has recently pointed out,

While Education Code 48907 protects the students, advisers who follow 48907 are vulnerable to the wrath of administrators.
     It is indeed a two-edged sword.  Do advisers disobey 48907 and keep administration happy, or do we follow 48907 and risk the possibility that the students will offend the administration, or even exercise less-than-perfect judgment as they learn?  Of course the decision should be made in accord with the law and with the educational needs of the students in mind; publishing is an essential element of an authentic writing process and students certainly do not fully grasp the First Amendment and the importance of the written word through a four-hour survey in their senior civics class.
     If the adviser does not circumscribe the student’s rights, then the adviser often suffers.  At least six advisers lost their positions in California high schools this year after conflicts with the administration over the content of the student press.  They joined a large and unhappy club of de-frocked adviser—a club I am a member of.
Advisers seem to be removed with increasing frequency in our current educational climate where every administrator lives in terror lawsuits and bad press.  Any sign of criticism, even on a student editorial page, is looked upon as damaging to morale and public image, disloyal, or insubordinate, so any adviser who does indeed teach the students sound English and journalism practices is liable to feel the heat of administrators who do not wish students to exercise their legal and educational rights.

Ewell has kept this issue alive to the point that, with the backing of the California Newspaper Publishers Association, Senator Leland Yee (D-San Francisco) has just introduced SB 1370, the Journalism Teacher Protection Act.  The bill actually protects any school employee whose conduct fits a certain profile, stating as an amendment to the no-censorship rule of Section 48907:

An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against for acting to protect a pupil engaged in the conduct authorized under this section, or conduct that is protected by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.

The measure contains similar language applicable at the college and university levels.

If You See Something, Say Something

CalAware’s President Emeritus Rich McKee, a chemistry Professor at Pasadena City College, is not as active as he was several years ago in reminding local councils, boards and commissions in southern California about their open meeting obligations under the Brown Act.  Although not a lawyer, McKee made it his fond avocation to urge, threaten litigation if necessary, and ultimately represent himself in lawsuits to see that the Act was respected.  He was even successful in going to the Court of Appeal, resulting in published decisions establishing that meetings of the governing body of a Los Angeles area joint powers network of drug law enforcement units are subject to the open meeting laws, and that anyone in California has standing to sue any local agency in California for violations of the Brown Act—with no residency requirement. 

Rich has not been as active so consistently to enforce the Brown Act in the last year or so, but he notes that a recent “issue with Whittier was the kind of thing that used to really irritate me, so I just had to do something.”  He forwarded to CalAware four documents which “in chronological order . . . are offered to illustrate the modest change you can make if you’re willing to engage secrecy, consciously or unconsciously used by local government, that removes public input from decision-making.”

He refers to an initial news story reporting the public reaction to seeing trees cut down in a residential neighborhood because of a closed session decision; the letters from a nearby couple stating their health concerns that were used as justification for taking the matter behind closed doors as an instance of potential litigation; McKee’s own letter challenging this secretive approach and demanding a cure or correction; and a follow-up news story showing the city’s concession that the closed session was not called for.

McKee says these items document “one of those little successes that, could we put together enough of them, might have a real impact in the fight for greater openness in local government.  After all, it didn’t really take much time; just three weeks from the first newspaper story to the city attorney’s letter admitting they could have done better, and will in the future.”

More than anything, McKee says, his reason for sharing the incident is his “wish that more people could be motivated to do this in their local community.  Not because they didn’t get their way, but just because openness and involvement are good for everyone.”

One way of looking at McKee’s attention to even the smaller deviations from transparency law is to think of them as examples in the governance realm of the “broken window theory.”  That concept, invented by scholars but often associated with the decline in felonies under former New York Mayor Rudy Giuliani, holds that giving prompt attention to relatively minor transgressions (broken window or graffiti vandalism, jumping subway turnstiles to dodge fares, etc.) preserves a sense of intolerance for disorder that discourages more serious offenses.

However criticized the theory may be as the sole or even dominant explanation for the reduction in New York felonies under Giuliani, its Brown Act parallel is fairly evident.  Local bodies that know they’re being monitored by informed watchdogs who will not hesitate to challenge them firmly on perceived violations of the open meeting law are probably less likely to engage in serious breaches.  Conversely, at least some local bodies that are relatively free of steady public attention—be it from cable TV viewers, news reporters or civilian watchdogs like McKee—are far more prone to conclude that few care or even know what they’re doing, and that the Brown Act is of little concern.

Few people can be expected to match Rich McKee’s mastery of the Brown Act and both readiness and success in litigation.  But as he points out, you’re less likely to have to sue if you speak up about lapses from the law, and do it based on correct analysis—CalAware can help you there—and polite but firm insistence.  As New York’s Metropolitan Transportation Authority says in a very different context, “If you see something, say something.”

Public Forum Law Week in Review: 2/6/08

(CalAware Weekly comprises this plus the previous three posts)

Open Government

What Questions Would You Like Asked?      OMB Watch is running a short survey to try and find the best open government questions to put to presidential candidates this year and is asking anyone interested to participate. Sean Moulton, OMB Watch’s director for federal information policy, says:

Take just a few minutes to answer our “Open Government: What We Need To Know” survey and vote on your five favorite questions on the issue of government transparency and openness. We will then share the top questions with the news media and other organizations that have direct contact with candidates.

Comment: Time to Stand against Secrecy    Contra Costa Times investigative reporter Tom Peele challenges you
to ask yourself a list of questions about your experience in seeking public information—then start getting assertive if you find your request stalled, stonewalled or stymied.

Free Speech

“Choose Life” OK for License Plate        The San Francisco Chronicle reports that the U.S. Ninth Circuit Court of Appeals has ruled that an Arizona anti-abortion group’s speech rights were violated when the state refused to issue specialty license plates with the message "Choose Life." The court noted that Arizona’s License Plate Commission had approved blander plates for other nonprofit organizations, such as associations of police and firefighters and the Wildlife Conservation Council, before turning down the Arizona Life Coalition. The ruling is applicable in California as well—in ways that DMV lawyers have been pondering—but at least one Californian doesn’t think it’s a wise one.

High Praise Indeed . . .     . . . For Anthony Lewis’s new book, Freedom for the Thought That We Hate,
coming from Nat Hentoff, Lewis’s only competitor for the title (if there were such) of Contemporary Evangelist for Freedom of Speech and Press. Hentoff’s own books include

Open Meetings

Charge: District Name Secretly Decided     The San Jose Mercury News reports that a lawyer for a Vietnamese community group has accused the San Jose City Council of secretly lining up votes last fall to decide the name of a new Vietnamese business district, in violation of the Ralph M. Brown Act.  The letter to Mayor Chuck Reed and the council demanded they rescind their unpopular November 20 vote to call the area "Saigon Business District."    
Litigation Figleaf for Secret Decision    The Pasadena Star News reports that when a Whittier couple asked the city for relief from the scatter of leaves and fruit from some fig trees on city property—citing a threat to their son’s delicate health—the city treated the situation as a lawsuit threat and, in closed session, decided to cut the trees down.  The unannounced chainsaw massacre was news to neighbors.

Free Press

Chief: No New Paparazzi Law Needed     The Los Angeles Times reports that L.A. Police Chief William Bratton is cool to a city councilman’s proposal for an ordinance creating a “personal safety zone” around photographer-swarmed celebrities such as Britney Spears, who recently had a 12-officer detail assigned to escort her on a hospital visit. 

“Councilman (Dennis) Zine is responding to frustration we all have with the paparazzi," Bratton said. "We already have appropriate laws within the constitutional guidelines and we intend to do that whether it is erratic driving, trespassing on private property or any action that goes beyond the constitutional rights to cover a story."

Public Information

Estimated Retrieval Cost: $30,000    Nearly four months after receiving an anonymous request for public records from a Sacramento law firm, Rancho Palos Verdes officials say they are only halfway done producing the documents and will end up spending more than expected on the project.

The Secrecy Apparat's "Neutron Bomb"

Congressional Quarterly
’s national security editor notes that when employees of intelligence agencies turn to the courts for redress of their maltreatment as whistleblowers, “they encounter the judicial version of a neutron bomb, the state secrets privilege.”

For more than 50 years, it’s allowed the spy agencies to pre-empt troublesome suits by declaring a matter so sensitive that mere mention of any of its elements in court, no matter how oblique, would cause “grave damage” to U.S. national security. The judges usually go along, the record shows, sometimes without even examining the documents themselves. Big surprise: Sometimes the spy agencies don’t tell the truth.”

As Steven Aftergood of Secrecy News observes, "The state secrets privilege has been invoked with growing frequency to deflect claims of unlawful domestic surveillance, detention, and torture as well as other more mundane complaints, on grounds that adjudicating them would cause unacceptable damage to national security."

Meanwhile a journalist for Pajamas Media reports that the government’s use of the privilege to gag FBI whistleblower Sibel Edmonds didn’t stop the London Sunday Times from reporting on January 6 that

A whistleblower has made a series of extraordinary claims about how corrupt government officials allowed Pakistan and other states to steal nuclear weapons secrets.
    Sibel Edmonds, a 37-year-old former Turkish language translator for the FBI, listened into hundreds of sensitive intercepted conversations while based at the agency’s Washington field office.
    She approached The Sunday Times last month after reading about an Al-Qaeda terrorist who had revealed his role in training some of the 9/11 hijackers while he was in Turkey.
    Edmonds described how foreign intelligence agents had enlisted the support of US officials to acquire a network of moles in sensitive military and nuclear institutions.   
    Among the hours of covert tape recordings, she says she heard evidence that one well-known senior official in the US State Department was being paid by Turkish agents in Washington who were selling the information on to black market buyers, including Pakistan.

Why the mainstream U.S. media’s silence on this accusation?  The Pajamas Media reporter says:

A current employee of the Department of Homeland Security, who spoke to Pajamas Media on the condition of anonymity, had this to say: “It is mind-boggling. I’ve sent personal emails to my contacts at ABC, at CBS, at the New York Times, and the Washington Times. No one is even responding to my emails. They call me back about other things, but as far as Sibel [Edmonds] is concerned, anything touching on that subject gets overlooked, gets ignored.”
    “Why?” this reporter asked.
    “Reporters are terrified of the State Secrets Privilege and being subpoenaed to testify before a federal grand jury. No one wants to wind up like Judy Miller—in jail.”

The unnamed source here may have been referring to penalties for disclosing classified information rather than the state secrets privilege per se, but the U.S. media’s inattention to the Sunday Times‘ explosive contention is in any event curious.

But Congress now appears poised to codify the  privilege and in doing so, limit its use. Last month Senator Ted Kenneday (D-MA), along with Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) has introduced S.2533, a bill “to enact a safe, fair and responsible state secrets privilege act.”  The measure will get its first hearing February 13 in the Senate Judiciary Committee, co-chaired by Leahy and Specter.  A full description of the need for the bill and how it would operate is found here.