WASHINGTON -- The Obama administration asked Sen. Chuck Schumer (D-N.Y.) Wednesday morning to reintroduce legislation that would help reporters protect the identity of their sources from federal officials, a White House official told The Huffington Post.
The scope of the bill and how effective it would be remains unclear, however, given prior administration opposition to a "reporter shield" law.
The request is opportunistically timed, coming just days after it was revealed that the Department of Justice had subpoenaed telephone records of 20 AP phone lines and more than 100 reporters and editors. The White House has faced heavy criticism for the subpoena, though the president has said that he was unaware of it and Attorney General Eric Holder said that he had recused himself from the investigation.
The subpoena, nevertheless, renewed questions over the administration's relationship with the press in general and with the proposed shield law specifically.
During a press conference on Tuesday, Holder said that both he and the president had long supported "a reporter shield law."
"If you remember, back in 2009 during my confirmation hearings, I testified in favor a of a reporter shield law," Holder said. "We actually as an administration took a position in favor of such a law. Didn't get the necessary support up on the Hill. It is something that this administration still thinks would be appropriate."
The actual backstory was more complex than Holder let on. In fact, the Obama administration played a significant role in weakening the reporter shield law under consideration, which led ultimately to its shelving.
In the fall of 2009, Sen. Chuck Schumer (D-N.Y.) and then-Sen. Arlen Specter (D-Pa.) put forward a bill that sought to prevent federal officials from compelling journalists to reveal sources or information under threat of jail time.
The bill would have required prosecutors to pursue every possible avenue for obtaining information without reporters' input before seeking information from them. It also would have required a court to sign off on a prosecutor's effort to subpoena a reporter by balancing the public's right to a free press with prosecutorial interests. It included narrow exemptions for information that would prevent an act of terrorism or a violent crime, and for eyewitness accounts of a crime.
The Obama administration worked to water down the bill by seeking a far broader national security exemption. It would have given members of the administration the prerogative to declare certain types of leaks a matter of national security, and require federal judges to defer to prosecutors' claims that the information involved was indeed an important national security issue.
“The White House’s opposition to the fundamental essence of this bill is an unexpected and significant setback," Sen. Chuck Schumer (D-N.Y.) told The New York Times in 2009. "It will make it hard to pass this legislation.”
Civil liberties advocates also noted that the administration's efforts had a dramatic effect on the bill's propsects for passage.
"They requested a specific exception for national security leaks, and that killed the bill," ACLU Legislative Counsel Gabe Rottman told HuffPost.
A month after the administration objected to the Schumer-Specter bill, the parties reached a compromise that largely reflected the Obama administration's preferences. The compromise also would not have protected reporter notes and other records from a prosecutor's subpoena.
The bill cleared the Judiciary Committee, but was unable to garner the votes necessary to pass the Senate, even though Democrats had a filibuster-proof 60 seats at the time. Members of Congress began debating whether bloggers should receive the same protections as journalists employed by traditional media outlets. When WikiLeaks released its first trove of documents in 2010, the legislation lost its remaining support.
UPDATE: 1:30 p.m. -- Brian Fallon, a spokesman for Schumer, told The New York Times that the senator would reintroduce the compromise version of the bill, not the original version that didn't include Obama's edits.
“This kind of law would balance national security needs against the public’s right to the free flow of information," Schumer said. "At minimum, our bill would have ensured a fairer, more deliberate process in this case.”
It's unclear what the compromise shield law would have accomplished in the case of the current controversy over the AP subpoena. The administration, after all, has cited compelling national security concerns as a justification for seizing those phone records.
White House Press Secretary Jay Carney, meanwhile, skirted questions about the dubious timing of the administration's push for a shield law. The president, he said, has long supported such a measure and "does think it is appropriate to resubmit that legislation and try to convert it into law."
"We are glad to see that that legislation will be reintroduced because [the president] believes strongly that we need to provide protections to the media that this legislation will do," said Carney.
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