Under pressure from lawmakers and journalism groups for the Justice Department’s subpoena of reporters’ telephone records, the Obama administration sought to revive a bill to help journalists protect confidential sources.
President Barack Obama’s staff asked Democratic Senator Charles Schumer to reintroduce legislation he co-sponsored in 2009 that would limit the circumstances under which the U.S. government could compel journalists to reveal information about their news gathering.
“Right now there’s virtually no guidelines, there’s no supervision,” Schumer, of New York, told reporters yesterday.
At the same time, Attorney General Eric Holder told the House Judiciary Committee yesterday that he was confident in the prosecutors who obtained the telephone records of the Associated Press journalists.
Holder, who recused himself from the leak investigation that led to the subpoenas, said he wasn’t sure a so-called shield law would make a difference in the AP case. Schumer also said he was unsure it would change the outcome for the news service, since the bill contains a national-security exception.
Representative Jim Himes, a Connecticut Democrat, took to the House floor to say he was “profoundly concerned” about the latest case. “It’s time for the Department of Justice to stand back,” said Himes, who questioned whether the actions would chill whistle-blowers in the government.
Under Obama and Holder, the Justice Department has prosecuted more government officials for alleged leaks to the news media under the World War I-era Espionage Act than all prior attorneys general combined.
The Justice Department informed the AP on May 10 that it had subpoenaed records from some of its telephone numbers over a two-month period last year. The records were taken without notice or a chance for the news agency to challenge in court.
White House press secretary Jay Carney said the president and his staff weren’t involved in the probe. Asked if the White House push for Schumer’s bill was to deflect political attacks, he said Obama viewed it as “appropriate to resubmit” the shield law legislation “at this time.”
Holder said he wasn’t informed in advance of the records seized because he had recused himself from the case.
The push for the federal shield law came as Obama also tried to contain political damage from probes into its handling of information about the attack on the U.S. mission in Benghazi, Libya, and the Internal Revenue Service targeting of small-government groups seeking tax-exempt status. Obama on television announced the resignation of the acting IRS commissioner.
Representative Bob Goodlatte, a Virginia Republican and chairman of the House Judiciary Committee, said at a hearing that “any abridgment of the First Amendment right to the freedom of the press is very concerning.”
Representative John Conyers of Michigan, the top Democrat on the panel, said he was “troubled by the notion that our government would pursue a broad array of phone records over a period of time.”
Schumer’s measure, which never went to the Senate floor for a vote in 2009, was similar to laws in 49 states. It would impose a test for federal judges in deciding whether to force disclosure of the sources.
The legislation would let the government compel disclosure of confidential information if it’s essential to stopping or mitigating terrorist acts or other significant harm to national security.
Schumer’s office said in a statement that it’s unclear whether the legislation would have affected the AP phone records case because a national security exception might have applied. Law enforcement authorities could still seek to “convince a court that special circumstances warranted a delay in the disclosure,” according to the statement.
The Supreme Court ruled in 1972 that the First Amendment doesn’t protect reporters from having to comply with grand jury subpoenas. At the same time, Justice Lewis Powell said in a separate opinion that judges should strike “the proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.”
Because Powell represented the controlling vote, lawyers have spent decades debating the meaning of his words and the extent to which his opinion limits the ability of prosecutors to demand information from reporters.
The Justice Department letter informing AP of the subpoena didn’t specify why it collected the records.
The AP, a nonprofit news cooperative owned by U.S. newspapers and broadcasters, said the review of its journalists’ phone records may be related to a federal probe into a May 7, 2012, news report about an intelligence operation in Yemen that foiled a plot to blow up an airliner around the first anniversary of the killing of Osama bin Laden.
Five reporters and an editor who worked on the terror story were among those individuals whose phone records for April and May 2012 were accessed, the news service said this week.
Deputy Attorney General James Cole, who took over supervising the leak investigation after Attorney General Eric Holder recused himself, said in a May 14 letter to AP’s chief executive that the department doesn’t “take lightly the decision to issue subpoenas” for phone records to the media.
“The subpoenas were limited to a reasonable period of time and did not seek the content of any calls,” Cole wrote.
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