United States President Barack Obama is encouraging Congress to take up a media shield law that was abandoned at the start of his administration, but critics of the bill say it might make it even easier for journalists to be subpoenaed by the government.
After the Associated Press revealed on Monday that they are the
target of a US Department of Justice probe, Obama asked lawmakers
to consider a would-be media shield law that fell apart in
Washington after the start of his first presidency in 2009.
The AP wrote this week that the Justice Department subpoenaed
two months of phone records likely in an attempt to try and find
out with whom the news agency spoke with before publishing a May
2012 article that exposed a Yemeni terror plot foiled by the
Central Intelligence Agency. Attorney General Eric Holder called
the disclosure of classified information to the AP one of the
biggest leaks ever suffered by the US and said publically that it
put the American people at risk. On Thursday, Pres. Obama commented
that “leaks related to national security can put people at
risk,” but suggested that reviving a media shield law that died
in Congress could perhaps strike the balance between the public’s
right to know and the safety of the nation.
“So the whole goal of this media shield law that was worked
on, and largely endorsed by folks like the Washington Post
editorial page and prosecutors, was finding a way to strike that
balance appropriately,” said the president. “And to the
extent this case … has prompted renewed interest about how do we
strike that balance properly, I think now is the time for us to go
ahead and revisit that legislation. I think that’s a worthy
conversation to have and I think that’s important.”
Now as the White House shifts focus from one scandal to another,
free speech advocates are concerned that the shield law, as
written, wouldn’t do much more than current legislation in terms of
thwarting future subpoenas sent to journalists. Trevor Timm, an
activist with the Electronic Frontier Foundation and a board member
of the Freedom of the Press Foundation, wrote in a blog post this
week that the media shield law touted by Pres. Obama during his
days as a senator in Illinois failed to take shape after he secured
his spot in the Oval Office.
“As a Senator, Obama was a vocal supporter of a robust shield
law; he co-sponsored a bill in 2007 and campaigned on the issue in
2008,” Timm wrote. “But when the Senate moved to pass the
bill as soon as Obama came into office, his administration abruptly
changed course and opposed the bill, unless the Senate carved out
an exception for all national security reporters.”
When Obama entered the White House in early 2009, he walked away
from a Senate where a shield law he advocated for had just started
to take shape. Before long, though, his own administration asked
for Congress to make adjustments before it ended up on the
president’s desk. That original law would, in theory, put in place
safeguards that would help prevent journalists from being compelled
to testify who their sources are. Once in the White House, though,
Obama did an about face.
In September 2009, Charlie Savage wrote for the New York Times
that those safeguards “would not apply to leaks of a matter
deemed to cause ‘significant’ harm to national security.”
“Moreover, judges would be instructed to be deferential to
executive branch assertions about whether a leak caused or was
likely to cause such harm, according to officials familiar with the
proposal,” Savage wrote.
One of the bill’s authors, Sen. Charles Schumer (D-New York),
had sharp words for the president at the time. “The White
House’s opposition to the fundamental essence of this bill is an
unexpected and significant setback. It will make it hard to pass
this legislation,” the senator said. Sen. Arlen Specter
(D-Pennsylvania), a co-sponsor, called the changes “totally
unacceptable.”
“If the president wants to veto it, let him veto it,”
Sen. Specter told the Times in 2009. “I think it is different
for the president to veto a bill than simply to pass the word from
his subordinates to my subordinates that he doesn’t like the
bill.”
Ultimately, the Senate Judiciary Committee approved the shield
law after some minor tweaking in December 2009, but as Savage
explained in the Times this week, “a furor over leaking arose
after WikiLeaks began publishing archives of secret government
documents, and the bill never received a vote.”
Speaking to the Washington Post about what the passing of that
version would have done in regards to the AP probe, Sen. Schumer
said, “at minimum, our bill would have ensured a fairer, more
deliberate process in this case.”
“While it is unclear whether the bill would change the
outcome in the AP phone records case since a national security
exception may have applied, the bill would have set up a legal
process for approving the subpoenas that would guarantee
consideration of the public’s interest in protecting the freedom of
the press,” Schumer weighed in. “Prosecutors would have to
convince a judge that the information at issue would “prevent or
mitigate an act of terrorism or harm to national security.”
For the Freedom of the Press Foundation, Timm wrote this week
that the latest version of the shield law wouldn’t do much more.
Under the Sept. 2009 request sent from the White House, the shield
law once supported by Pres. Obama would include an exception where
journalists could be subpoenaed if it means national security is at
risk.
“Now, it’s important to remember: virtually the only time the
government subpoenas reporters, it involves leak investigations
into stories by national security reporters. So it’s hard to see
how this bill will significantly help improve press freedom,”
wrote Timm. “Worse, there’s a strong argument that passing the
bill as it ended in 2010 will weaken rights reporters already have
and make it easier for the government to get sources from
reporters.”
“The difference is that instead of DOJ unilaterally making
that determination,” the Justice Department would “have to
convince a judge that this was the case,” University of
Minnesota Law Professor Jane Kirtley explained to the Post.
On Thursday, Sen. Schumer and Sen. Lindsey Graham (R-South
Carolina) announced they would co-sponsor a media shield bill – but
that the national security exemption ordered by Obama in 2009 was
once again present.
“The government has a legitimate interest in preventing and
investigating leaks of classified information,” Graham and
Schumer wrote. “At the same time, the public has a legitimate
interest in a robust free press.”
“This bill strikes a fair and reasonable balance between
those interests, and we urge you to join us in advancing it,”
they wrote
This article originally appeared on : RT