Opinion
              FILE - In this May 15, 2013, file photo, Attorney General Eric Holder gestures while testifying on Capitol Hill in Washington. Four American citizens have been killed in drone strikes since 2009, Attorney General Eric Holder said Wednesday, May 22, 2013. Holder said that in conducting U.S. counterterrorism operations against al-Qaida and its associated forces, the government has targeted and killed one American citizen, Anwar al-Awlaki. Al-Awlaki, a radical Muslim cleric, was killed in a drone strike in September 2011 in Yemen. The administration released the information the day before President Barack Obama is scheduled to make a major speech on national security. (AP Photo/Carolyn Kaster, File)
              FILE - In this May 15, 2013, file photo, Attorney General Eric Holder gestures while testifying on Capitol Hill in Washington. Four American citizens have been killed in drone strikes since 2009, Attorney General Eric Holder said Wednesday, May 22, 2013. Holder said that in conducting U.S. counterterrorism operations against al-Qaida and its associated forces, the government has targeted and killed one American citizen, Anwar al-Awlaki. Al-Awlaki, a radical Muslim cleric, was killed in a drone strike in September 2011 in Yemen. The administration released the information the day before President Barack Obama is scheduled to make a major speech on national security. (AP Photo/Carolyn Kaster, File)   

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

Photo of Lanny Davis
Lanny Davis
Former Special Counsel to President Clinton
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      Lanny Davis

      Lanny J. Davis counsels individuals, corporations and government contractors, and those under congressional scrutiny, on crisis management and legal issues by developing legal, media and legislative strategies that are designed to best produce a successful result for the client. He has experience in securities fraud and SEC investigations as well, and has found that utilizing such an integrated legal/media/lobbying approach can lead to quicker and less expensive settlements or even successfully litigated outcomes. Senior officials of public companies have also hired Lanny and his crisis group to defend themselves successfully against "short and distort" attacks and other market manipulations. For 25 years prior to 1996, before his tenure as special counsel to President Clinton, Lanny was a commercial, antitrust, government contracts and False Claims Act litigator (both in defense as well as plaintiff). He has argued numerous appellate cases in the U.S. courts of appeals.

      In June 2005, President Bush appointed Lanny to serve on the five-member Privacy and Civil Liberties Oversight Board, created by the U.S. Congress as part of the 2005 Intelligence Reform Act. In that capacity, he received the highest level security clearances so that he could be fully briefed and "read in" to the various anti-terrorist surveillance and financial tracking programs at the highest classified level. From 1996 to 1998, Lanny served as special counsel to the president in the White House and was a spokesperson for the president and the White House on matters concerning campaign finance investigations and other legal issues. Lanny has participated in national, state and local politics for almost 30 years. He has served three terms (1980 to 1992) on the Democratic National Committee representing the state of Maryland, and during that period he served on the DNC Executive Committee and as chairman of the Eastern Region Caucus. In Montgomery County, Maryland, he served as chairman of the Washington Suburban Transit Commission.

      Lanny has authored several books and lectured throughout the United States and Europe on various political issues. Between 1990 and 1996, Lanny was a bimonthly commentator on Maryland politics for WAMU-88.5/FM, a Washington, D.C. local affiliate of National Public Radio. He has been a regular television commentator and has been a political and legal analyst for MSNBC, CNN, Fox Cable, CNBC and network TV news programs. He has published numerous op-ed/analysis pieces in the New York Times, the Wall Street Journal, he Washington Post and other national publications.

      Lanny graduated from Yale Law School, where he won the prestigious Thurman Arnold Moot Court prize and served on the Yale Law Journal. A graduate of Yale University, Lanny served as chairman of the Yale Daily News.

      Lanny is admitted to practice in the District of Columbia and Connecticut and before the Supreme Court of the United States and the U.S. Court of Appeals for the District of Columbia Circuit.

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.”