Under Fire, White House Pushes Media Shield Law

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 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.

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.

“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 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.

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.

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.

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.

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.

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.”

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.

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.

In his testimony, Mr. Holder said he supported Mr. Schumer’s bill.

“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.”

Article source: http://www.nytimes.com/2013/05/16/us/politics/under-fire-white-house-pushes-to-revive-media-shield-bill.html?partner=rss&emc=rss