A Change That’s Hard to Believe In

Obama calls backsies on shield law

There’s a reason why people don’t trust politicians’ promises: from time to time, they go back on them.

That’s exactly what seems to be happening this week, as the Obama administration has communicated to Capitol Hill that the administration will only support the Free Flow of Information act—a bill colloquially known as the shield law—if legislators make major changes that would weaken judicial oversight of reporter subpoenas.

Last session, President Obama was a cosponsor of the bill, which was reintroduced this session essentially unchanged.

The bill’s main function is to require judicial review and approval of government subpoenas issued to journalists that seek the identities of sources promised confidentiality, or information or documents obtained after a promise of confidentiality. Judges are instructed to only approve subpoenas if they are convinced that the government has exhausted every other possible method of obtaining the information.

But according to Charlie Savage’s story in yesterday’s New York Times, the Obama administration has demanded that the law be changed so that judges are instructed to ignore those rules if the administration determines that the information at question would cause “‘significant’ harm to national security.”

This reversal has not been well appreciated by the Reporters Committee for Freedom of the Press, a major backer of the bill, nor by its strongest legislative proponents. Arlen Specter, a long time Senate watchdog of executive power, told Savage that the administration’s new position was “totally unacceptable.”

That’s likely because ensuring judicial review of journalist subpoenas, in all cases, is the whole point of the legislation. Obama’s proposed change is a carve-out that would allow this and future administrations’ officials to determine without review what might cause significant harm—and thereby determine if a subpoena request would be subject to judicial review without check.

Beyond Obama’s co-sponsorship (just one Congress ago!) of a bill without any carve-out, it’s not hard to find other evidence of longstanding support for some version of a shield law. In 2005, he appeared before the Illinois Press Association and the Illinois Associated Press Editors Association and pledged to support similar legislation. He went so far as to imply that a lack of support for such a law from the Bush administration was part of the reason he regarded them as “the most secretive administration at least since Richard Nixon’s,” adding that Bush “perhaps outdoes Nixon in some ways.”

And on April 15, 2008, a week before the hotly contested Pennsylvania democratic primary, Obama appeared before the Associated Press’s annual convention, where he was directly asked which branch of government should determine whether or not reporters should be forced to reveal sources. The full transcript is available here, but the most salient points are below:

QUESTION: Senator Obama, do you believe that a sitting administration or a federal judge should decide if a confidential source should be protected?

OBAMA: I think that that is an issue that should be determined by the courts. And this raises, I think, a broader issue of civil liberties and our various freedoms… the essence of our constitutional principles is that not only do we have these civil liberties enshrined in the Bill of Rights, but that we also have mechanisms in place to make sure that there are checks and balances between the branches…

But what we have to make sure of is that there is somebody watching over the administration to ensure that it’s not being abused.

And that simple principle that there’s somebody watching the watcher, that there is not simply a — somebody in the White House somewhere who is making unilateral decisions about how we strike the balance between our civil liberties and our safety, whether that’s on an issue of freedom of the press or it’s an issue of warrantless wiretaps — that simple principle is one that we can’t give up and we don’t have to give up. Because it turns out that, actually, the courts, generally, are pretty good at this stuff.

And if you present them with good evidence that there is a national security risk involved, they generally respond.

Today Obama has a very different tune on whether or not judges should be allowed and can be trusted to oversee these decisions This can only mean one of two things.

One is that less than a year and a half ago, Obama hadn’t fully considered his opinion on a vital matter of the intersection of press freedom, the courts, and national security. The other is that before a gathering of journalists he made a promise he never intended to keep.

Neither scenario is particularly flattering.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.