Sen. Chuck Schumer said Sunday a group of eight senators will look at setting rules on how leaks about government secrets are investigated.
“We’ll be announcing that we have four Democrats and four Republicans … another Gang of Eight,” Schumer said Sunday on CBS’ “Face The Nation.”
Schumer said in mid-May that he and Sen. Lindsey Graham, R-S.C., will reintroduce the so-called media shield bill pursued unsuccessfully four years ago.
The New York Democrat said Sunday that before the government asks a news organization to divulge sources it first must go to a judge. He says that judge would “impose a balancing test” to determine which is more important, the government’s desire to find the information or the robust freedom of the press.
Back in 2009, after the House passed a media shield bill, the action shifted to the Senate, leading to a compromise bill that would protect reporters’ sources, but grant the government authority to override that in certain national security cases. The measure was never voted on by the full Senate.
In recent weeks, the administration has acknowledged secretly seizing portions of two months of phone records from The Associated Press. The AP received no advance warning. The seizure was part of an investigation into who leaked information to AP reporters for a May 7, 2012, story that disclosed details of a foiled plot in Yemen to bomb a U.S.-bound airliner, around the anniversary of the May 2, 2011, killing of Osama bin Laden.
The government also read the emails of Fox News reporter James Rosen in a separate investigation about the publication of government secrets. Rosen’s emails were seized, with a judge’s approval, as part of the prosecution of Stephen Kim, a State Department adviser who is accused of leaking secret information about North Korea.
Under intense pressure this week, President Barack Obama said the Justice Department would review the policy under which it obtains journalists’ records in investigating leaks of government secrets.
The president said the government has to strike the right balance between security and an open society. He said Attorney General Eric Holder will meet with representatives of media organizations and report back to him by July 12.
On the question of phone records, the Justice Department is guided by policy that first was written 40 years ago after the excesses of the Watergate era. Investigators are not supposed to consider a subpoena for journalists’ phone records unless “all reasonable attempts” have been made to get the same information from other sources, the rules say.
News organizations are supposed to get advance warning so that they can fight the subpoena in court, unless the notification could compromise an investigation.
The new proposal wouldn’t provide blanket protection for a journalist from having to reveal whom he or she spoke to confidentially. But the government would have to convince a federal judge that the confidential source had compromised national security in speaking to the journalist.
The measure Schumer is proposing says that in civil and criminal cases, “a judge would have to conduct a balancing test that would weigh the public interest in the free flow of information against the needs of law enforcement,” said Schumer spokesman Brian Fallon. He said that in national security cases, more deference is paid to the needs of law enforcement.
In national security leak cases, the bill would require a judge to determine that information being sought is necessary to prevent or mitigate national security harm, Fallon said. Media would need to be “notified in real time” that their records are being sought, he said.
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