Criticized on records seizure, White House pushes shield law

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WASHINGTON -- Under fire over the Justice Department's use of a broad subpoena to obtain calling records of Associated Press reporters in connection with a leak investigation, the Obama administration sought Wednesday to revive legislation that would provide greater protections to reporters in keeping their sources and communications confidential.

President Barack Obama's Senate liaison, Ed Pagano, on Wednesday morning called the office of Sen. Chuck Schumer, D-N.Y., and asked him to reintroduce a version of a bill that he had pushed in 2009 called the Free Flow of Information Act, a White House official said.

The bill would create a federal media shield law, akin to ones that most states already have, giving journalists some protections from penalties for refusing to identify confidential sources in federal law enforcement proceedings, and generally enabling journalists to ask a federal judge to quash subpoenas for their phone records.

Hours later, Attorney General Eric H. Holder Jr. appeared before the House Judiciary Committee for a hearing that covered a wide range of topics, but repeatedly returned to the AP phone records. Lawmakers from both parties sought to grill him over why federal investigators secretly used a subpoena this year to obtain a broad swath of toll records -- logs of calls sent and received -- for several AP bureaus and reporters, without advance notice.

"These requests appear to be very broad and intersect important First Amendment protections," said the panel chairman, Rep. Robert W. Goodlatte, R-Va. "Any abridgment of the First Amendment right to the freedom of the press is very concerning."

Holder repeatedly noted, however, that he had recused himself because the FBI had interviewed him as one of the officials who knew the information that was leaked to The AP, which is believed to be about the foiling of a bombing plot involving the Yemen branch of al-Qaida in the spring of 2012. The decision to approve the subpoena was made by his deputy, James M. Cole. "I was not the person who was involved in that decision," Mr. Holder said.

That answer, versions of which he gave in response to multiple questions from Republicans about the leak investigation, did not satisfy committee members, several of whom said they wanted Mr. Cole to appear before the committee and answer questions. But Mr. Holder cautioned that since the investigation was continuing, Mr. Cole might not be able to discuss the issue.

The attorney general also said he did not put his recusal in writing, which drew widespread criticism from lawmakers. Later in the hearing, he said he had decided to examine whether it would be a better policy always to record when he was transferring his powers to his deputy for a specific matter.

The committee's top Democrat, Michigan Rep. John Conyers, noted that he had sponsored a version of the Free Flow of Information Act that twice passed the House when it was controlled by Democrats. He said he would reintroduce his version, too, and he said he hoped that Republicans -- who until recently had called for more aggressive investigations of leaks -- would support it.

The version the Obama administration is seeking to revive, however, is the one that was chiefly sponsored by Mr. Schumer, which was negotiated between the newspaper industry and the White House. The Senate Judiciary Committee approved it in a bipartisan 15-4 vote in December 2009. But while it was awaiting a floor vote in 2010, a furor over leaking arose after WikiLeaks began publishing archives of secret government documents, and the bill never progressed.

In a statement confirming that he would reintroduce his bill, Mr. Schumer referred to the controversy over the AP calling records subpoena, saying: "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 AP.

The 2009 legislation would have created a presumption that when the government was 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 would also 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.

Under the bill, the scope of protection for reporters would vary according to whether it was a civil case, an ordinary criminal case or a national security case. The greatest protection would be given to civil cases, in which litigants seeking to force reporters to testify or trying to obtain their calling information would be required 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 classified information disclosure would more heavily tilt toward the government. Judges could not quash a subpoena through a balancing test if prosecutors presented facts showing that the information sought might help prevent a terrorist attack or other acts likely to harm national security.

In his testimony Wednesday, Mr. Holder said he supported Mr. Schumer's bill. "There should be a shield law with regard to the press's ability to gather information and to disseminate it," he said. "The focus should be on those people who break their oath and put the American people at risk, not reporters who gather this information."

nation


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