James Rosen case prompts frank discuss about balance between First Amendment, national security

There are new details emerging about about a Justice Department investigation into Fox News correspondent James Rosen.

Using data from his security badge, the Department of Justice, according to applications for search warrants made public, tracked when Rosen came and left the State Department. They also kept tabs on the timing of his calls and obtained a warrant to search his personal emails.

The details, which come on the heels of news that the Department of Justice seized phone records of AP reporters, presents a dark picture of an administration intent on tightly monitoring political journalists.

David Sanger, chief Washington Correspondent for The New York Times, can speak to this issue from personal experience. In the past, he himself was the subject of an investigation.

“The things they did with James Rosen in that case, which actually goes back a few years now — you’d expect them to do some of them, for example looking at when he used his electronic badge to get in and out of the State Department, for example,” Sanger said.

But what really concerns Rosen is the Justice Department using a search warrant to inspect journalists’ email traffic, as opposed to getting a subpoena and not giving a news organization a chance to challenge the subpoena.

“Under the Justice Department’s own rules, they’re only supposed to go after reporters’ records, notes or testimony after every other option has been exhausted,” he said.

Those guidelines also include prior consultation with news organizations, rather than secret search warrants — but there are loopholes.

In the case of the AP records seizure, the department invoked an exception, related to national security concerns, to obtain the call logs without notification.

Sanger said there’s long been a tension between those who would argue that the First Amendment should always yield to national security, and those who argue the inverse, the First Amendment should never yield.

“The reality is that when you look at the case law, it’s a balancing act that goes throughout most of the cases. The question here is, who do you want to have do that balancing. And if it’s done entirely by the Justice Department, you know how the balance is going to sort out,” he added. “It won’t be much a balance at all.”