Obama administration wants national security exemption in federal shield law

The Obama administration wants the federal shield law now in Congress to force reporters to disclose confidential sources who leak national security information. -DB

The New York Times
October 1, 2009
By Charlie Savage

WASHINGTON, D.C. — The Obama administration has told lawmakers that it opposes legislation that could protect reporters from being imprisoned if they refuse to disclose confidential sources who leak material about national security, according to several people involved with the negotiations.

The administration this week sent to Congress sweeping revisions to a “media shield” bill that would significantly weaken its protections against forcing reporters to testify.

The bill includes safeguards that would require prosecutors to exhaust other methods for finding the source of the information before subpoenaing a reporter, and would balance investigators’ interests with “the public interest in gathering news and maintaining the free flow of information.”

But under the administration’s proposal, such procedures 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.

The two Democratic senators who have been prime sponsors of the legislation, Charles E. Schumer of New York and Arlen Specter of Pennsylvania, said on Wednesday that they were disappointed by the administration’s position.

Mr. Specter called the proposed changes “totally unacceptable,” saying they would gut meaningful judicial review. And in a statement, Mr. Schumer said: “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.”

But Ben LaBolt, a White House spokesman, called the proposed changes appropriate and argued that the administration was making a significant concession by accepting some judicial review. He noted that the Bush administration had strongly opposed such a bill as an incursion into executive power.

“The president believes the courts should have the power to review whether administrations appropriately conclude that the disclosure of information is necessary because maintaining confidentiality could cause significant harm to our national security,” Mr. LaBolt said.

The administration informed Congress of its proposal after an Oval Office meeting Monday between Mr. Obama and several top members of his national security team, including Attorney General Eric H. Holder Jr.; the F.B.I. director, Robert S. Mueller III; and Homeland Security Secretary Janet Napolitano, according to people involved with the negotiations. Military and intelligence officials have also expressed concerns about the bill.

Several advocates for reporting groups reacted with dismay. They noted that as a senator, Mr. Obama had co-sponsored an earlier version of the “media shield” bill and that Mr. Holder had testified in favor of such legislation.

“This is the question I would have to ask, ‘Do they really want a bill?’ ” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “It doesn’t appear that they do.”

Proponents of a shield law argue that it is in the public interest to allow reporters to protect confidential sources in order to bring important information to light. Opponents note that the unauthorized disclosure of classified information is illegal and argue that members of the news media should not be allowed to decide whether exposing national security secrets is justified.

About three dozen states have some form of a reporter-shield law, Ms. Dalglish said.

In a recent letter calling for a vote on the shield bill, Mr. Specter said that at least 19 journalists had been subpoenaed by federal prosecutors for information about confidential sources since 2001 and that four had been imprisoned for refusing to comply.

Among them was Judith Miller, who as a reporter for The New York Times was subpoenaed in connection to the Valerie Wilson C.I.A. leak case. Prosecutors also threatened two San Francisco Chronicle reporters with jail over reporting based on leaked grand jury information about steroid use by professional athletes.

The House has already approved a version of the shield bill, but it has stalled in the Senate Judiciary Committee. Mr. Specter said lawmakers should vote the bill out and let the Obama administration, which has not taken an official stance on the bill, deal with it openly.

“If the president wants to veto it, let him veto it,” Mr. Specter said. “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.”

Copyright 2009 The New York Times Company

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