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White House Pushes for Media Shield Law White House Pushes for Media Shield Law
(about 5 hours later)
WASHINGTON — The Obama administration sought on Wednesday to revive legislation that would provide greater protections to reporters from penalties for refusing to identify confidential sources, and that would enable journalists to ask a federal judge to quash subpoenas for their phone records, a White House official said. WASHINGTON — Under fire over the Justice Department’s use of a broad subpoena to obtain calling records of Associated Press reporters in connection with a leak investigation, the Obama administration sought on Wednesday to revive legislation that would provide greater protections to reporters in keeping their sources and communications confidential.
The official said that President Obama’s Senate liaison, Ed Pagano, called Senator Charles E. Schumer, Democrat of New York, who is a chief proponent of a so-called media shield law, on Wednesday morning and asked him to reintroduce a bill that he had pushed in 2009. Called the Free Flow of Information Act, the bill was approved by the Senate Judiciary Committee in a bipartisan 15-to-4 vote in December 2009. But while it was awaiting a floor vote, a furor over leaking arose after WikiLeaks began publishing archives of secret government documents, and the bill never received a vote. President Obama’s Senate liaison, Ed Pagano, on Wednesday morning called the office of Senator Charles E. Schumer, Democrat of New York, and asked him to reintroduce a version of a bill that he had pushed in 2009 called the Free Flow of Information Act, a White House official said.
The new push comes as the Obama administration has come under fire from both parties amid the disclosure this week that the Justice Department, as part of a leak investigation, secretly used a subpoena earlier this year to obtain a broad swath of calling records involving Associated Press reporters and editors. The bill would create a federal media shield law, akin to ones most states already have, giving journalists some protections from penalties for refusing to identify confidential sources in federal law enforcement proceedings, and generally enabling journalists to ask a federal judge to quash subpoenas for their phone records.
Attorney General Eric H. Holder Jr. on Tuesday defended the subpoena but also disclosed that he had recused himself last year from overseeing the investigation, and that his deputy, James M. Cole, was the official who signed off on obtaining the toll records — logs of calls sent and received — for several A.P. bureaus and reporters. Hours later, Attorney General Eric H. Holder Jr. appeared before the House Judiciary Committee for a hearing that covered a wide range of topics but repeatedly returned to the A.P. phone records. Lawmakers from both parties sought to grill him over why federal investigators secretly used a subpoena this year to obtain a broad swath of toll records — logs of calls sent and received — for several A.P. bureaus and reporters, without advance notice.
In testimony before the House Judiciary Committee on Wednesday afternoon, members of Congress from both parties sought to grill Mr. Holder about the scope of the subpoena for The A.P.'s calling records and why the organization was not given advance notice so it could contest it. “These requests appear to be very broad and intersect important First Amendment protections,” said the committee’s chairman, Representative Robert W. Goodlatte, Republican of Virginia. “Any abridgment of the First Amendment right to the freedom of the press is very concerning.”
Mr. Holder, however, repeatedly noted that he had recused himself because the F.B.I. had interviewed him as one of the officials who knew the information that someone leaked to The A.P., which is believed to be about the foiling of a bomb plot by the Yemen branch of Al Qaeda in the spring of 2012. The decision to approve the subpoena, he said, was made by his deputy, Mr. Cole. Mr. Holder, however, repeatedly noted that he had recused himself because the F.B.I. had interviewed him as one of the officials who knew the information that was leaked to The A.P., which is believed to be about the foiling of a bombing plot involving the Yemen branch of Al Qaeda in the spring of 2012. The decision to approve the subpoena was made by his deputy, James M. Cole.
“I was not the person who was involved in that decision,” he said.“I was not the person who was involved in that decision,” he said.
That answer, versions of which he gave in response to multiple questions about the leak, did not satisfy committee members, several of whom said they wanted Mr. Cole to appear before the committee and answer the questions. Mr. Holder, however, cautioned that since the investigation was continuing, Mr. Cole might not be able to discuss the issue. That answer, versions of which he gave in response to multiple questions from Republicans about the leak investigation, did not satisfy committee members, several of whom said they wanted Mr. Cole to appear before the committee and answer questions. Mr. Holder, however, cautioned that since the investigation was continuing, Mr. Cole might not be able to discuss the issue.
Brian Fallon, a spokesman for Mr. Schumer, said the senator would reintroduce the compromise version of the media shield bill in the form that passed the Judiciary Committee. Mr. Holder also said that he did not put his recusal in writing, which drew widespread criticism from the lawmakers. Later in the hearing, he said that he had decided to examine whether it would be a better policy to always record when he was transferring his powers to his deputy for a specific matter.
In a statement, Mr. Schumer referred to the A.P. subpoena: “This kind of law would balance national security needs against the public’s right to the free flow of information. At minimum, our bill would have ensured a fairer, more deliberate process in this case.” The top Democrat on the committee, Representative John Conyers of Michigan, noted that he had sponsored a version of the Free Flow of Information Act that passed the House twice when it was under Democratic control. He said he would reintroduce his version, too, and he said he hoped that Republicans — who until recently had called for more aggressive investigations of leaks — would support it.
It is not clear whether such a law would have changed the outcome of the subpoena involving The A.P. But it might have reduced the chances that the Justice Department would have demanded the records in secret, without any advance notice to the news organization, and it may have allowed a judge to review whether the scope of the request was justified by the facts. The version the Obama administration is seeking to revive, however, is the one that was chiefly sponsored by Mr. Schumer, which was negotiated between the newspaper industry and the White House. It was approved by the Senate Judiciary Committee in a bipartisan 15-to-4 vote in December 2009. But while it was awaiting a floor vote in 2010, a furor over leaking arose after WikiLeaks began publishing archives of secret government documents, and the bill never received a vote.
Under the 2009 bill, which was negotiated between the newspaper industry, the White House and the Judiciary Committee, the scope of protection for reporters seeking to shield the identities of their confidential sources or the calling records showing with whom they had communicated would vary according to whether it was a civil case, an ordinary criminal case or a national security case. In a statement confirming that he would reintroduce the legislation, Mr. Schumer referred to the controversy over the subpoena of A.P. calling records, saying: “This kind of law would balance national security needs against the public’s right to the free flow of information. At minimum, our bill would have ensured a fairer, more deliberate process in this case.”
The most protection would be given to civil cases, in which litigants seeking to force reporters to testify or seeking their information would first have to exhaust other means of obtaining the information before making the request. The burden would be on the information seekers to show why their need for the information outweighed the public’s interest in unfettered news gathering. It is not clear whether such a law would have changed the outcome of the subpoena involving The A.P.
The 2009 legislation would have created a presumption that when the government was seeking calling records from a telephone carrier, the news organization would be notified ahead of time, allowing it to fight the subpoena in court. But the bill would also have allowed the government to seek a 45-to-90-day delay in notification if a court determined that such notice would threaten the integrity of the investigation.
Under the bill, the scope of protection for reporters would vary according to whether it was a civil case, an ordinary criminal case or a national security case.
The greatest protection would be given to civil cases, in which litigants seeking to force reporters to testify or trying to obtain their calling information would be required to show why their need for the information outweighed the public’s interest in unfettered news gathering.
Ordinary criminal cases would work in a similar fashion, except the burden would be on the reporter seeking to quash the subpoena to show by a “clear and convincing” standard that the public interest in the free flow of information should prevail over the needs of law enforcement.Ordinary criminal cases would work in a similar fashion, except the burden would be on the reporter seeking to quash the subpoena to show by a “clear and convincing” standard that the public interest in the free flow of information should prevail over the needs of law enforcement.
Cases involving the disclosure of classified information — as in the investigation into The A.P.'s disclosure of the failed bomb plot in Yemen last spring — would be even more heavily tilted toward the government. Judges could not quash a subpoena through a balancing test if prosecutors could show that the information sought might help prevent a future terrorist attack or other acts likely to harm national security. Cases involving the disclosure of classified information would be more heavily tilted toward the government. Judges could not quash a subpoena through a balancing test if prosecutors presented facts showing that the information sought might help prevent a terrorist attack or other acts likely to harm national security.
However, the prospect that a confidential source might leak something else in the future would not be enough to invoke that exception under the 2009 compromise legislation. In his testimony, Mr. Holder said he supported Mr. Schumer’s bill.
It remains unclear what kind of legal device the Justice Department used to obtain The A.P.'s calling records from phone companies. It is not clear how the standards established by the media shield legislation would apply to administrative subpoenas called “national security letters” that the F.B.I. may issue to obtain customer records from a business without a judge’s permission. “There should be a shield law with regard to the press’s ability to gather information and to disseminate it,” he said. “The focus should be on those people who break their oath and put the American people at risk, not reporters who gather this information.”
The 2009 legislation would have created a presumption that when the government is seeking calling records from a telephone carrier, the news organization would be notified ahead of time, allowing it to fight the subpoena in court. But the bill also would have allowed the government to seek a 45-to-90-day delay in notification if a court determined that such notice would threaten the integrity of the investigation.
In the summer of 2010, Mr. Schumer sought to distance the media shield bill from fallout from the WikiLeaks disclosures by raising the prospect of amending it to make clear that its protections would apply only to traditional news-gathering activities and not to Web sites that serve as a conduit for the mass dissemination of secret documents. But that issue was never resolved, and the bill Mr. Schumer is reintroducing is the one that cleared the Judiciary Committee in December 2009, Mr. Fallon said.