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Chuck Schumer
The news that the Justice Department had subpoenaed phone records of AP reporters and editors have made a proposed 2009 media shield bill timely again:
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.
There's a catch, however. That previous bill, called the Free Flow of Information Act and introduced by Schumer and Arlen Specter, was originally opposed by the Obama administration over "national security" concerns. A compromise was carved out that would allow current and future administrations to declare that a given leak was an issue of "national security"—and would require judges to accept a prosecutor's say-so that the information being investigated met the criteria for such an exemption. That was a broad enough loophole that it helped kill support for the entire bill. It's apparently that compromise bill that's going to be reintroduced:
Brian Fallon, a spokesman for Mr. Schumer, said the senator would reintroduce the compromise version of the media shield bill in the form that passed the Judiciary Committee.

In a statement, Mr. Schumer referred to the A.P. subpoena: “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.”

Given that the AP investigation has already been declared to fall into the realm of "national security" concerns, it seems uncertain just how much the bill would have affected the current case. The situation was considered, however:
The 2009 legislation would have created a presumption that when the government is 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 also would 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.
Reintroducing the bill is a good first step. Tweaking it so as to not rely so heavily on prosecutor say-so as to whether any particular leak investigations is too important to follow the normal rules might be another; we've not had very good luck with administrations asking us to trust them on such matters.

Originally posted to Hunter on Wed May 15, 2013 at 12:49 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  One of the problem with the Cons is (3+ / 0-)
    Recommended by:
    sceptical observer, MKSinSA, judyms9

    that they can be haphazard about passing laws because they have no intention of enforcing them against their friends. Not only are they scofflaws, but, given their prejudicial antagonisms, the law in their hands is just another tool to punish their enemies and reward their friends.
    Cons don't need enemies to define themselves; they need enemies to activate their antagonisms, without which they are as nothing. The party of no needs to obstruct and to make a spectacle of itself. They're like peacocks -- nothing without their strut.

    We organize governments to deliver services and prevent abuse.

    by hannah on Wed May 15, 2013 at 01:02:37 PM PDT

    •  Obama's cynicism is endless (1+ / 0-)
      Recommended by:
      Involuntary Exile

      Obama opposed this bill in 2010 and Holder said yesterday if they got a new bill they STILL would have used the National Security exemption to spy on AP - so it's irrelevant!

      GOP and Obama are co-conspirators on undermining the 1st amendment.

      •  The so-called "Bill of Rights" is actually a list (0+ / 0-)

        of prohibitions addressed to agents of government, to be complied with unless it is inconvenient or in conflict with the other obligations enumerated in the main body of the Constitution. Protecting the national security has come to trump all. After that come property rights and then human rights make up the rear, if at all. Exceptions to the rule of law make the U.S. exceptional.
        It would be nice if human rights were preeminent, but that's hardly possible as the state retains the right to execute malefactors (as long as the right process has been followed) males are still required to register for involuntary service in the military and children can be taken from their parents, if they don't care for them well. Nor can we say human rights are a priority as long as we proclaim there is "no free lunch" and the money to buy food is controlled by the banks.
        Americans swear by their property rights and give little thought to the fact that property rights are exclusive and shut other people out from using the resources God provided for their sustenance. Even public property is increasingly restricted so the homeless can't even sleep in a park at night.
        Somehow, I cannot be overly concerned about a press that relies on exclusive gossip to fill its pages and prohibits even the dissemination of this public information. The telephone lines and the internet are public communications systems. If the press wants privacy, let them post a letter via USPS.

        We organize governments to deliver services and prevent abuse.

        by hannah on Thu May 16, 2013 at 01:25:27 PM PDT

        [ Parent ]

  •  Given that this administration (18+ / 0-)

    has prosecuted more whistleblowers than previous administrations, including some started by Bush, and that it has also continued the abuse of the Bush administration's use of national security exemption to prevent victims of human rights abuses from suing the government, I really don't hold out much hope for anything useful.

    Republicans want to make government small enough to fit in your vagina..

    by ramara on Wed May 15, 2013 at 01:02:40 PM PDT

  •  Given the massive over-classification of documents (11+ / 0-)

    it would be hard to leak anything that couldn't be in some way be related to national security by an overzealous prosecutor or administration.

    "The human eye is a wonderful device. With a little effort, it can fail to see even the most glaring injustice." Richard K. Morgan

    by sceptical observer on Wed May 15, 2013 at 01:10:16 PM PDT

  •  When I see that headline (11+ / 0-)

    My mind wanders to view amendments, renegotiating NAFTA and the public option.

    Mr President, you don't need a law to keep you from violating the bill of rights.  Just stop violating the bill of rights.  

    Bad things aren't bad! And anyway, there's mitigation!

    by Nada Lemming on Wed May 15, 2013 at 01:18:34 PM PDT

  •  call me cynical (16+ / 0-)

    whats the point of having judicial review or oversight if ....

    - and would require judges to accept a prosecutor's say-
    there isnt any?

    this move looks like 'lipstick on a pig' to me.

    If I can't dance I don't want to be part of your revolution. ~ Emma Goldman

    by Lady Libertine on Wed May 15, 2013 at 01:19:55 PM PDT

  •  It's not a good step. What good is a law with (8+ / 0-)

    a loophole that allows claims of National Security to trump civil rights. More political dress up from this Administration.

  •  So, crap bill redux. (5+ / 0-)

    It's not even good kabuki theater anymore.

  •  Yet another law that restricts judges to (11+ / 0-)

    pointless rubberstamps, forced to go along with "trust me ..." The amount of "trust me" legislation, regulation, prosecutorial action and the like has grown steadily and relentlessly since 911. Ww no longer have the rule of law, but the rule of man.

    That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

    by enhydra lutris on Wed May 15, 2013 at 03:53:40 PM PDT

    •  Not even that. (1+ / 0-)
      Recommended by:
      enhydra lutris

      Fundamentally, the rule of law is the rule of man - for who else enforces the law?

      What the USA has now is the rule of secrecy. "Trust me!" "Ignore what I'm hiding!" "It's for your own good!"

      And one of the biggest disappointments of progressives, from what I've seen, is that they have been dealt so many setbacks by a Democratic Administration, in one of the fields where it used to be easy ot see the difference between the two parties.

      "Violence never requires translation, but it often causes deafness." - Bareesh the Hutt.

      by Australian2 on Thu May 16, 2013 at 07:52:09 AM PDT

      [ Parent ]

  •  *sigh* A self-policed Executive Branch (8+ / 0-)

    is an unpoliced one.

    I don't care how many times the Executive tells me there really is a national security problem, or the guys we blew up with drones really were bad guys, etc. If no-one is meaningfully supervising them, it's all bullshit. You can't trust anyone to police themselves.

    Code Monkey like freedom / Code Monkey like peace and justice too
    Code Monkey very nerdy man / With big warm fuzzy bleeding heart
    Code Monkey like you!

    Formerly known as Jyrinx.

    by Code Monkey on Thu May 16, 2013 at 07:36:04 AM PDT

    •  Kinda like the financial sector, in that way. (2+ / 0-)
      Recommended by:
      Code Monkey, quagmiremonkey

      A self-policing financial sector is an unpoliced financial sector. Virtually every progressive accepts this (self-evidently true) proposition, but I've seen so many make excuses for the Obama Administration's expansion of executive privilege.

      "Violence never requires translation, but it often causes deafness." - Bareesh the Hutt.

      by Australian2 on Thu May 16, 2013 at 07:53:07 AM PDT

      [ Parent ]

  •  When (1+ / 0-)
    Recommended by:

    70 people get shot in a movie theater, it's "too soon" or "not the right time" to address gun control legislation at the federal level.  When 20 little kids get shot in a classroom, gun control advocates are making an "emotional" and not logical attack on 2A (straight from the hand of God) "rights".

    Now there's a kerfuffle about the gubmint looking at the phone records of the AP (which I'm having a hard time getting worked up about since the MS media in America have been sleepwalking for a decade at least) and the US Congress is going to ram through a bad bill that does nothing to fix the "national security" loophole, thus enabling this very situation to re-occur when the next "leak" happens.

  •  "What is legal is what is right" again (3+ / 0-)
    Recommended by:
    jlfessler, quagmiremonkey, Not A Bot

    "We complied with all applicable laws" is the standard of civil liability for corporate weasels. It has absolutely nothing to do with right and wrong.

    We know this, in the United States.

    The President has said, or as much as said, "Take away my legal authority, please. Until then, I have to use it." Here, it's "shield yourselves from us." Otherwise, they feel that they will continue to do anything legal, or maybe legal, and feel that it's right.

    We wanted Obama because we knew that the legislative branch had abdicated. He was supposed to help, not point at it and mock.

    "...ere God made us He loved us; which love was never slacked, nor ever shall be." - Juliana of Norwich

    by The Geogre on Thu May 16, 2013 at 07:41:40 AM PDT

    •  it's still on us (1+ / 0-)
      Recommended by:
      The Geogre

      I rec'd your comment but I do have an addendum.

      We have to keep in mind that once O's role changed to President, his ability (and proclivities) to buck the status quo also changed - necessarily so.  Just as an attorney can move from defense to prosecutor or vise versa - on similar cases - and has to bring the same level of representation to a cause or client which had been an earlier opponent.

      Even so, O has made some attempts, witness the obstructed efforts on Gitmo as an example.

      The bottom line though is that a president will only make those changes that receive sufficient political force.  FDR made lots of promises, and upon election noted that now, it was up to his supporters to force him to make good on them.

      Snow essentially made the same statement on the 5/15 Daily Show.  As an electorate, we don't like that.  We would prefer to "set it, and forget it".  But our opponents, and inertia don't let that happen.  Compound that with the out-sized voice of monied interests, and forcing any elected official to do as they promised becomes a full time effort.

      The ugly truth is that we do get the government we deserve.  The monied interests know the average citizen does not have the luxury of strong, sustained political engagement.  They not only take advantage of that, but actively  foster the condition.  That means we have to work at least doubly hard and never let down our guard.

      Painful, but necessary.

      •  You preclude reformers (0+ / 0-)

        I understand what you're saying, but you allow the role to tacitly forgive the action, regardless of how sullied the role has become or what institutional history has colored it. We must have reformers, or the potential for them.

        The Watergate Congress went on a tear of reform. We can speculate that it was "forced," but neither money nor elections actually propelled it forward. In fact, the "stop picking on Nixon" camp had a good portion of popular sentiment (as evidenced by the continuing grudge it carries).

        In our place today, we have a legislative branch that has abdicated, on the one hand, and been rendered moot, on the other, by gerrymandering. Can we never have reformer Executives? Can they only ever be forces of darkness and consolidation? Can't they - - say when elected by a large popular margin responding to the desire for change and hope -- decentralize power?

        "...ere God made us He loved us; which love was never slacked, nor ever shall be." - Juliana of Norwich

        by The Geogre on Thu May 16, 2013 at 08:26:52 AM PDT

        [ Parent ]

        •  not to forgive the action... (1+ / 0-)
          Recommended by:
          The Geogre

          ... just explain it.  Cool comfort, without doubt.

          And the Watergate backlash/reform is spot-on as an example of what can happen when the situation is sufficiently dire; as are TR's trust busting and the wave of reforms following '29.

          With our current combination of legislative dysfunction and corporate play-calling, along with an atrophied noblesse oblige from those able to attain posts of authority, our culture devolves under the weight of toothless laws and cynical gamesmanship.

          A few swim against this tide (I'm looking at you Ms. Warren and Mr. Sanders).  But 51% will not be enough to qualify as a large popular vote and free Obama to do as his private thoughts might lead him.  Without the tools to effect the change he might want, he stands a better chance to nudge events by "slow playing" it.

          It's most irritating and I want him to at least forcefully express those directions - even if attaining them proves impractical without partners of like mind in the legislature.  My sincerest hope is that 2014 ushers in a D controlled House and Senate, and contrary to history, O's last two years are his best.  I will work for that.

  •  Oh thank god (2+ / 0-)
    Recommended by:
    bluicebank, Involuntary Exile

    for that!

    "Justice is a commodity"

    by joanneleon on Thu May 16, 2013 at 07:41:56 AM PDT

  •  In 2007 White House squashed the legislation (3+ / 0-)
    Recommended by:
    quill, Not A Bot, Involuntary Exile

    don't have the link to the NY Times article that Schumer said that the White House actions would lead to the bill being killed

    heard today from David Cay Johnston

    the white house is in damage control now

  •  Just so I am crystal clear (1+ / 0-)
    Recommended by:

    ABC falsifies a classified email to bring down a sitting President but now folks are saying they should have some kind of SHIELD making them immune from prosecution?

    Is that about right?

    If they get a shield then I want a shield also.  I'm not above the law.  Not sure why the media is above the law.

    •  Um, absolutely hell friggin' yes? (2+ / 0-)
      Recommended by:
      Not A Bot, Involuntary Exile

      Sure, what ABC did was pretty egregious. But making shit up about the President absolutely is not criminal.

      Just because the media regularly makes a mockery of their job doesn't mean it's no longer a fundamental right.

      Code Monkey like freedom / Code Monkey like peace and justice too
      Code Monkey very nerdy man / With big warm fuzzy bleeding heart
      Code Monkey like you!

      Formerly known as Jyrinx.

      by Code Monkey on Thu May 16, 2013 at 08:04:34 AM PDT

      [ Parent ]

  •  Everything you say is true; (3+ / 0-)

    However, can we really see Barack Obama signing a bill that doesn't have that loophole into it? Given the zeal with which his Administration has pursued whistleblowers and other such persons, I can't say I'm optimistic.

    "Violence never requires translation, but it often causes deafness." - Bareesh the Hutt.

    by Australian2 on Thu May 16, 2013 at 07:48:55 AM PDT

  •  One last thought (0+ / 0-)

    So this shield basically means they can MAKE UP a source and no one would be the wiser.

    Maybe Manti Te'o should become a reporter.

  •  Obama's Full of It (6+ / 0-)

    After 5 years of Obama lying to protect executive power (his own, and corporate power like banks, insurers, oil corps, and anyone else executive), isn't it obvious that he's full of it?

    Sure, he's better than a Republican, like life in prison is better than a broken neck.

    "When the going gets weird, the weird turn pro." - HST

    by DocGonzo on Thu May 16, 2013 at 07:49:42 AM PDT

  •  Polling over the last 10+ years shows that (2+ / 0-)
    Recommended by:
    Code Monkey, madcitysailor

    half of our fellow citizens say that they think the First Amendment goes too far.  Nearly half of Americans say it gives us too much freedom!  (Maybe half of us actually believed that the 9/11 hijackers 'hated us for our freedoms'...)

    The least popular First Amendment right is freedom of the press; millions of Americans saying the press in America has too much freedom.  (This is probably a reflection of the nonstop 'liberal media is ruining America' meme from the righties.  But who knows.)

    It's odd now that voters are all up in arms about freedom of the press being under threat.

  •  The bar continues to be lowered (2+ / 0-)

    and lowered, and lowered...

    I didn't abandon the fight, I abandoned the Party that abandoned the fight...

    by Jazzenterprises on Thu May 16, 2013 at 07:57:14 AM PDT

  •  Why doesn't the Government (0+ / 0-)

    Simply buy the phone records from the carriers like all the other companies that get that information?

  •  Does the bill have anything in it that restrains (0+ / 0-)

    the scope of an investigation?

    I understand that the FBI basically tracked every call to or from every reporter on some 20 lines in that office.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Thu May 16, 2013 at 07:58:02 AM PDT

  •  Govt's overreach but National Security can (0+ / 0-)

    be a good reason at times, just hard to feel good about judicious use of this rule

    •  That's what judges' chambers are for. (4+ / 0-)

      If there's a legitimate national security reason to make an exception, tell it to the judge behind closed doors. The idea that we should trust the executive whenever they say we have to is ludicrous.

      Code Monkey like freedom / Code Monkey like peace and justice too
      Code Monkey very nerdy man / With big warm fuzzy bleeding heart
      Code Monkey like you!

      Formerly known as Jyrinx.

      by Code Monkey on Thu May 16, 2013 at 08:07:18 AM PDT

      [ Parent ]

    •  For example (0+ / 0-)

      America breaks N. Korea's nuclear codes.  Some would say its fine to leak that out.  Others would say if you leak it out, N. Korea gets the heads up and changes their code.

      My issue is this.

      Who decides what should be secret and what should not be secret?  The media or the Government?

  •  [Looks around the room] (3+ / 0-)

    Did I miss something? Is this a move by the administration to fool someone into thinking it's concerned about its DOJ jacking into the AP's phone system?

    Tell me this isn't a biscuit thrown to Liberals.

  •  disappointing double-talk window dressing (3+ / 0-)

    hey, let's re-introduce the watered down bill that was so watered down it collapsed under it's own water weight.

    This administration is no friend to civil liberties

    Growth for the sake of growth is the ideology of the cancer cell. --Edward Abbey

    by greenbastard on Thu May 16, 2013 at 08:07:04 AM PDT

  •  Whatever happened to the red badge (0+ / 0-)

    of courage?

    There was a time in this country when reporters wanted to go to jail to protect their source.  It gave them HUGE AMOUNTS of street cred.

    Now they are so weak kneed that they complain about government overreach instead of just going to jail and building up some street cred.

    Spend a week or two in the pokey and come out a hero.

    •  what are you talking about? (2+ / 0-)
      Recommended by:
      quagmiremonkey, MrJayTee

      You seem to be conflating different issues. Reporters still can go to jail protecting sources, when in court.

      But this has nothing to do with that. This is the govt performing a fishing expedition sweeping up the records from home and business of reporters, some not even involved with the supposed investigation, and they did it for two months worth of records.

      Growth for the sake of growth is the ideology of the cancer cell. --Edward Abbey

      by greenbastard on Thu May 16, 2013 at 08:18:28 AM PDT

      [ Parent ]

    •  Look, there's a big difference between (0+ / 0-)

      Going to jail for contempt of court and going to jail for "aiding terrorists" or "threatening national security". That's what we're coming to.

      "A week or two in the pokey" is not the issue.

      A slower bleed-out is not a sustainable value.

      by MrJayTee on Thu May 16, 2013 at 08:46:54 AM PDT

      [ Parent ]

  •  Can't Dick Cheney just come out say it was (0+ / 0-)

    good to remain on the "dark side" where he took us rather than pointing at Obama and saying he's not keeping us safe?  This dark side of press monitoring will no doubt be permanently tied to national security.

    Building a better America with activism, cooperation, ingenuity and snacks.

    by judyms9 on Thu May 16, 2013 at 08:41:56 AM PDT

  •  There is a dialectical tension between government (0+ / 0-)

    and press.  It will always be there because while the free press has the right to report on the government and the government also has a right, in rare instances, to guard certain information.  It is analogous to individuals thinking they have a right to guard certain information about their private lives and be able to seek recourse if that information is leaked.  But like all conflicts between conflicting rights the boundaries have to be tested in law.  

  •  Just.... (0+ / 0-)

    What the media, needs, protection from lying to the American public, creating stories instead of reporting stories, and getting away with it.

    ABC news put false information without even reading the damn thing before reporting it as fact. Has ABC apologized for that yet?

    Two random people being put on the front page of a newspaper being labeled as the Boston bombers, despite the fact it was bullshit. No the two people get harassed constantly. Was there ever an apology for that?

    CNN couldn't give out a facts during the Boston Bombs if those facts slapped them across the face.

    Lawrence O' Donnell said two days ago that the press like to think of themselves as a special class, where they have protections that no one else has, he then ended it by saying, unfortunately, those laws do not exist. They cannot even be trusted to report FACTS, or even take responsibility for their bullshit "reporting".

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