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.
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.
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.
In testimony before the House Oversight Committee on Wednesday, Mr. Holder reiterated that he had recused himself from the investigation. “I’m simply not a part of the case,” he said.
Brian Fallon, a spokesman for Mr. Schumer, said the senator would reintroduce the compromise version of the bill in the form that passed the Judiciary Committee.
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.”
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.
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.
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.
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 a 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.
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.
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.
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.
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
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