Though the White House wouldn't comment on the Department of Justice seizing phone records from the Associated Press, it did take one step Wednesday to try and limit the increasing political fall-out of the department's action. By making overtures to renew a media shield law, the administration gets to have its beloved subpoena power and condemn it, too.
According to a report in The New York Times, the president's liaison to the Senate called Senator Chuck Schumer of New York to try and restart the 2009 Free Flow of Information Act. That bill, crafted by the Senate in concert with the newspaper industry and the White House, passed out of the Senate Judiciary Committee but never received a final vote following the furor that arose once Wikileaks released leaked cables. (The bill's re-introduction was confirmed by other outlets speaking to White House officials.)
That bill would have set three levels of protection for journalists, as the Times's Charlie Savage outlines. If sued in a civil case, the media's right to protect sources would have been strong, requiring a clear demonstration that the concerns of the person filing the lawsuit trumped the right to a free press. Criminal cases would have required reporters to prove that free press was more important than law enforcement's concerns. On the federal level:
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.
In other words, this law likely wouldn't have prevented the Justice Department from seeking a subpoena to access the Associated Press' phone records, nor would it necessarily have forced the department to inform the AP earlier that the subpoena existed. Which is probably why Attorney General Eric Holder repeatedly said at a hearing on Capitol Hill today that he supported implementation of the bill.
It's why the White House does, too. As has been noted before, the Obama administration has pursued leaks with a vigor that's been unprecedented. On Tuesday, Slate's Emily Bazelon walked through what that looks like.
“We have tried more leak cases—brought more leak cases during the course of this administration than any other administration,” Holder said before the Senate Judiciary Committee last year. …
Between 1917 and 1985, there was one successful federal leak prosecution. The Obama White House, by contrast, has pursued leaks “with a surprising relentlessness,” as Jane Mayer wrote in her masterful New Yorker piece about the prosecution of Thomas Drake.
The 2009 bill wouldn't do much to temper that relentless push.
On Wednesday, The New Republic's Molly Redden wrote that the administration's prosecutions has a real effect on journalists' ability to do their jobs.
[Prosecutions have] unnerved reporters, [Times reporter Scott Shane] and others said, but even more so their sources: national security officials. In fact, it’s hard to call a reporter on this beat who hasn’t felt sources withdraw as the subpoenas and seizures have piled up. “Officials are reluctant to get anywhere close to the line,” Shane said. “Take drones. The official position is that the government cannot confirm or deny the existence of a drone program in Pakistan. But the president has spoken several times, publicly, about the program. Is someone going to get into trouble for talking about it?” Few want to test the limits. “Sometimes they’ll offer some black humor about it. ‘So you want me to be the next person to go to prison?’ But it actually has been much harder to get people to talk about anything, even in a sensitive-but-unclassified area.”
Which is almost certainly the intent of the prosecutions: suggest to any whistleblowers that there are consequences for that action. By advocating for a renewed shield law, Obama gives himself something he can point to in response to critique. In other words, it's a bill that would give the press a shield in certain circumstances — and give the president one for himself.
This article is from the archive of our partner The Wire.
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