Freedom of the press v. national security – A tough balance

By Lanny J. Davis – 05/30/13

I have known and been a friend of Attorney General Eric Holder for many years. He is a progressive Democrat who believes in First Amendment values and especially vigorous freedom for investigative reporters to publish the facts. So I give the Attorney General a heavy presumption of good faith and trying to make the best judgment at the time.

I also know, as widely reported, that now, with the wisdom of hindsight, he is willing to express regrets about the approach used in subpoenaing telephone records of certain reporters in the course of a serious national security leak investigation, especially the ill-advised decision to name Fox investigative reporter as a criminal “co-conspirator.”

By the way, the words Holder testified to in front of the Judiciary Committee were, as far as I can tell, accurate — there was never an intent to bring criminal charges against (or “prosecute,” as he said) Fox’s James Rosen. That is a fact. And that is what he said. Naming Rosen as a co-conspirator, however ill-advised, was for the purpose of establishing him as a fact witness, not to prosecute him.

I for one believe the bar should be very, very high — that is two “verys” — before any reporter should have to be subpoenaed to testify and required to reveal the source of a story.

Roger Ailes, Fox News Channel’s CEO and president, was right to be angry and to denounce the naming of his respected Fox investigative reporter as a co-conspirator in the affidavit supporting the subpoena for telephone records. (If I were in trouble, I would want Ailes in the trenches to take the spears for me. Full disclosure: I am a Fox News contributor and friend of Ailes for many years; another fan and friend of Ailes is progressive MSNBC TV commentator Chris Matthews, who got his first TV job from him.)

The best — the only — answer to resolving the inherent tension between First Amendment freedoms and the need to deter national security-implicated leaks that could be illegal is (forgive what seems to be a trite expression) a balanced approach. And this is what we see, thank goodness, from two senators from both sides of the aisle: Sens. Lindsey Graham (R-S.C.) and Charles Schumer (D-N.Y.), who released a legislative proposal over the weekend that from now on, any subpoena for telephone records or wire intercepts of journalists should be decided by a judge, not the Department of Justice or FBI alone.

The judicial balancing standards proposed by Schumer and Graham are as follows:

“In national security leak cases, demands for reporters’ phone or email records — whether sought by subpoena or National Security Letter — would need to be approved by a judge under a strict legal standard. The judge would need to be convinced that there is a ‘significant and articulable risk of future terrorism or harm to the national security’ and that the information sought would materially assist the government in preventing that risk.”

The proposal would also require the news organization to be notified ahead of time to be given a chance to object to the judge or the Justice Department before the subpoenas are issued. I would also suggest that the definition of a journalist be taken into consideration by the judge, with a free-lance blogger (who could be an al Qaeda member in disguise) given less weight for protection by a judge than a reporter of a known, serious news organization, such as Rosen.

This should be a truly purple issue: neither liberal ACLU members nor conservative libertarians and Tea Party members want expansive government power that can chill First Amendment expression or vigorous investigative reporting. On the other hand, since 9/11, there is no “red” or “blue” difference between the need to protect against genuine threats from terrorists and hostile powers to our homeland’s security.

We need to protect our individual privacy rights — libertarians and liberals agree on that. And we need to avoid another 9/11 — libertarians and liberals agree on that. Let’s go ahead with that purple position and find the right balance.

Davis served as special counsel to former President Clinton and is principal in the Washington D.C. law firm of Lanny J. Davis & Associates, in which he specializes in crisis management. He is Special Counsel to Dilworth Paxson of Philadelphia, Pa., and the author of a recently published book, Crisis Tales: Five Rules for Coping with Crises in Business, Politics, and Life (Threshold Editions/Simon and Schuster). He can be followed on Twitter @LannyDavis.

Click here to read the full op-ed on The Hill.