May 17, 2013
Under fire for the unprecedented Justice Department leak investigation that has engulfed the Associated Press, the White House yesterday asked the Senate to revive the stalled federal shield bill, which would aim to protect reporters from being forced to reveal their sources in many situations.
A robust federal shield law for reporters is long overdue. Unfortunately, this bill is not it. As written in 2009, it would not have helped the Associated Press in this case, and worse, it would actually make it easier for the Justice Department to subpoena journalists covering national security issues.
First, some history: A federal shield bill has been years in the making, and when Obama was first elected, it seemed like a sure thing. 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. 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.
Both Democratic and Republican supporters at the time were furious. Sen. Arlen Spector (R-PA) said the proposed changes were “totally unacceptable,” and Sen. Schumer (D-NY) said they were “an unexpected and significant setback.”
Eventually the Senate Judiciary Committee and the administration came to a “compromise” in which the bill would be heavily watered down for national security cases, making it incredibly hard, though technically not impossible, to quash a subpoena involving such a case.
As Charlie Savage notes in the New York Times, challenges to national security journalism subpoenas would be “heavily tilted toward the government.” The AP’s case would clearly fall into this category. The government would have to argue to a judge that there was national security implications but the judge is directed to give “deference” to government claims and puts all the burdens on the reporter. The balancing test between a free press and the government that would hypothetically occur in other cases would be eviscerated. (Read the full provision in section 5 on page 15 of the bill.)
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.
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.
Take the case of New York Times reporter James Risen, who is currently fighting a subpoena to reveal his sources for his book on the Bush administration, State of War. A district court held that Risen was protected from testifying because of the Fourth Circuit’s common law privilege that balances the interests of the government versus the interests of the free press. They held the test was the same for national security cases as every other criminal case—just as it should be.
“A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” the district court judge aptly wrote. (Note: the balancing test used by the judge was very similar to the original, good shield bill Obama supported as a Senator.)
But if the watered-down shield law passed in 2010 then, it would have overrode this common law privilege and the government likely could have invoked the national security exception and directed Risen to testify.
Incidentally, the decision in the government’s appeal of James Risen’s case could come down any day now, as it was argued a year ago this week. Whatever the outcome, it will be the most significant press freedom case in a decade or more.
During oral arguments in the Fourth Circuit Court of Appeals, the government surprised the judges when asked to explain why the government’s interests outweigh the public’s interest in a free press in Risen’s case. The government refused to argue the specifics of the case, and instead, they asserted that there should never be reporter’s privilege in stories involving national security.
The sweeping, dangerous nature of the Justice Department’s arguments really has to be read to be believed.
If President Obama really wants to right the wrong in the Associated Press case, he could disavow his Justice Department’s arguments in the James Risen case. He could also put forth the federal shield law he co-sponsored in 2007, rather than the “compromise” from 2009.
We hope President Obama reverts to his original position on this matter as a Senator and supports such a robust bill. Anything else would be a step backwards for the press.