Obama’s media shield law makes prosecuting journalists even easier

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