Striking the right balance between national security and freedom of the press

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 a Fox investigative reporter — James Rosen — as a criminal “co-conspirator.”

By the way, the words Eric 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,” the word he used) Mr. 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 “very’s” — before any reporter should have to be subpoenaed to testify and required to reveal the source of a story.

Rogers 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 Roger Ailes in the trenches to take the spears for me. P.S. I am a Fox News contributor and friend of Ailes for many years. P.P.S. — another fan and friend of Roger Ailes is progressive MSNBC commentator, Chris Matthews, who got his first TV job from Ailes.)

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, one from each side of the aisle — Senators Lindsey Graham (R-SC) and Charles Schumer (D-NY), 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 DOJ or FBI alone.

The judicial balancing standards proposed by Messrs. 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.”