ESPIONAGE ACT AND THE LEGAL AND CONSTITUTIONAL ISSUES RAISED BY
WIKILEAKS
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
DECEMBER 16, 2010
__________
Serial No. 111-160
__________
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona
Georgia LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois TED POE, Texas
JUDY CHU, California JASON CHAFFETZ, Utah
TED DEUTCH, Florida TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
C O N T E N T S
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DECEMBER 16, 2010
Page
OPENING STATEMENTS
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Member, Committee on the Judiciary..... 3
The Honorable William D. Delahunt, a Representative in Congress
from the State of Massachusetts, and Member, Committee on the
Judiciary...................................................... 4
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Member, Committee on the Judiciary 5
The Honorable Charles A. Gonzalez, a Representative in Congress
from the State of Texas, and Member, Committee on the Judiciary 5
The Honorable Ted Poe, a Representative in Congress from the
State of Texas, and Member, Committee on the Judiciary......... 5
WITNESSES
Mr. Geoffrey R. Stone, Professor and former Dean, University of
Chicago Law School
Oral Testimony................................................. 6
Prepared Statement............................................. 9
Mr. Abbe David Lowell, Partner, McDermott Will & Emery, LLP
Oral Testimony................................................. 22
Prepared Statement............................................. 25
Mr. Kenneth L. Wainstein, Partner, O'Melveny & Myers, LLP
Oral Testimony................................................. 39
Prepared Statement............................................. 41
Mr. Gabriel Schoenfeld, Ph.D., Senior Fellow, Hudson Institute
Oral Testimony................................................. 48
Prepared Statement............................................. 50
Mr. Stephen I. Vladeck, Professor of Law, American University
Oral Testimony................................................. 66
Prepared Statement............................................. 69
Mr. Thomas S. Blanton, Director, National Security Archive,
George Washington University
Oral Testimony................................................. 74
Prepared Statement............................................. 77
Mr. Ralph Nader, Legal Advocate and Author
Oral Testimony................................................. 87
ESPIONAGE ACT AND THE LEGAL AND CONSTITUTIONAL ISSUES RAISED BY
WIKILEAKS
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THURSDAY, DECEMBER 16, 2010
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room 2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Committee) presiding.
Present: Representatives Conyers, Scott, Jackson Lee,
Delahunt, Johnson, Quigley, Gutierrez, Schiff, Sensenbrenner,
Coble, Gallegly, Goodlatte, King, Frank, Gohmert, Poe, and
Harper.
Staff Present: (Majority) Perry Apelbaum, Staff Director
and Chief Counsel; Elliot Mincberg, Counsel; Sam Sokol,
Counsel; Joe Graupensberger, Counsel; Nafees Syed, Staff
Assistant; (Minority) Caroline Lynch, Counsel; Kimani Little,
Counsel; and Kelsey Whitlock, Clerk.
Mr. Conyers. Good morning. The hearing on the Espionage
case and the legal and constitutional issues raised by
WikiLeaks before the Committee on Judiciary is now about to
take place. We welcome everyone here to the hearing. In the
Texas v. Johnson case in 1989, the Supreme Court set forth one
of the fundamental principles of our democracy. That is, that
if there is a bedrock principle underlying the First Amendment,
it is that the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or
disagreeable.
That was Justice William Brennan. Today the Committee will
consider the WikiLeaks matter. The case is complicated,
obviously. It involves possible questions of national security,
and no doubt important subjects of international relations, and
war and peace. But fundamentally, the Brennan observation
should be instructive.
As an initial matter, there is no doubt that WikiLeaks is
in an unpopular position right now. Many feel their publication
was offensive. But unpopularity is not a crime, and publishing
offensive information isn't either. And the repeated calls from
Members of Congress, the government, journalists, and other
experts crying out for criminal prosecutions or other extreme
measures cause me some consternation.
Indeed, when everyone in this town is joined together
calling for someone's head, it is a pretty sure sign that we
might want to slow down and take a closer look. And that is why
it was so encouraging to hear the former Office of Legal
Counsel, Jack Goldsmith, who served under George W. Bush
caution us only last week. And he said, I find myself agreeing
with those who think Assange is being unduly vilified. I
certainly do not support or like his disclosure of secrets that
harm U.S. national security or foreign policy interests. But as
all the handwringing over the 1917 Espionage Act shows, it is
not obvious what law he has violated.
Our country was founded on the belief that speech is
sacrosanct, and that the answer to bad speech is not censorship
or prosecution, but more speech. And so whatever one thinks
about this controversy, it is clear that prosecuting WikiLeaks
would raise the most fundamental questions about freedom of
speech about who is a journalist and about what the public can
know about the actions of their own government.
Indeed, while there's agreement that sometimes secrecy is
necessary, the real problem today is not too little secrecy,
but too much secrecy. Recall the Pentagon papers case, Justice
Potter Stewart put it, when everything is classified, nothing
is classified. Rampant overclassification in the U.S. system
means that thousands of soldiers, analysts and intelligence
officers need access to huge volumes of purportedly classified
material. And that necessary access in turn makes it impossible
to effectively protect truly vital secrets.
One of our panelists here today put it perfectly in a
recent appearance. He explained, our problem with our security
system, and why Bradley Manning can get his hands on all these
cables, is we got low fences around a vast prairie because the
government classifies just about everything. What we really
need are high fences around a small graveyard of what is really
sensitive. Furthermore, we are too quick to accept government
claims that risk the national security and far too quick to
forget the enormous value of some national security leaks. As
to the harm caused by these releases most will agree with the
Defense Secretary, Bob Gates, his assessment.
Now, I have heard the impact of these releases on our
foreign policy described as a meltdown, as a game changer, and
so on. I think those descriptions are fairly significantly
overwrought. And Mr. Gates continues, is this embarrassing?
Yes. Is it awkward? Yes. Consequences for U.S. policy? I think
fairly modest.
So the harm here, according to our Republican Defense
Secretary, is fairly modest. Among the other side of the
ledger, there is no need to go all the way back to the Pentagon
papers to find examples of national security leaks that were
critical to stopping government abuses and preserving a healthy
democracy. They happen all the time.
In 2005, The New York Times published critical information
about widespread domestic surveillance. Ultimately, we learned
of a governmental crisis that included threats of mass
resignations at the Justice Department and outrageous efforts
to coerce a sick attorney general into approving illegal spying
over the objections of his deputy and legal counsel's office.
If not for this leak, we would have never learned what a civil
libertarian John Ashcroft is.
In 2004, the leak of a secret office of legal counsel
interrogation memos led to broader revelations of the CIA's
brutal enhanced interrogation programs at Black sites. These
memos had not been previously revealed to the Judiciary
Committee or to many in Congress. Some feel this harmed
national security. But to many Americans, the harm was a secret
program of waterboarding and other abuses that might never have
been ended but for the leak.
And so we want to, as the one Committee in the Congress
that I have a great and high regard for, take a closer look at
the issues and consider what, if any, changes in the law might
be necessary. And I want to welcome this very distinguished
panel. I have read late into the night, and I was awake most of
the time when I was reading this, some really great testimony.
And I am so glad that you are all here with us. I would like
now to recognize my friend and Ranking Member, Judge Louie
Gohmert.
Mr. Gohmert. Thank you, Chairman. And I do appreciate the
witnesses here. Before I begin my actual statement, let me just
say I appreciate, and am also intrigued by your metaphorical
use of the need for high fences around a small graveyard. But I
am curious, are you saying this Administration is located in a
small graveyard? Is that the point?
Mr. Conyers. See me after the hearing, please, Judge
Gohmert.
Mr. Gohmert. Thank you, Chairman. And I appreciate the
Ranking Member Smith asking me to stand in. But the release
last month by WikiLeaks of over 250,000 classified and
diplomatic U.S. documents threatens our national security, our
relations with foreign governments, and continued candor from
embassy officials and foreign sources. Many have applauded the
Web site and its founder, Julian Assange, as a hero advocating
the continued release of classified and sensitive government
documents. But to do so is both naive and dangerous. Web sites
such as WikiLeaks and the news publications that reprint these
materials claim to promote increased government transparency.
But the real motivation is self-promotion and increased
circulation to a large extent. They claim to be in pursuit of
uncovering government wrongdoing but dismiss any criticism that
their actions may be wrong or damaging to the country. As long
as there have been governments, there have been information
protected by those governments. There have clearly been
documents classified that should not have been classified.
While there is legitimate dispute over the extent to which
information is protected and classified, it is simply
unrealistic to think that the protection of information serves
no legitimate purpose.
Much attention has been given to this most recent WikiLeaks
release. Many dismiss that any negative repercussions resulted
from the leak arguing that the documents, while embarrassing to
the U.S., did no real harm to the country. But what about
previous leaks by this Web site? On July 25, 2010, WikiLeaks
released confidential military field reports on the war in
Afghanistan. This site released Iraq war-related documents on
October 23, 2010. Both of these leaks reveal sensitive military
information that endanger military troops and may have
bolstered our enemy's campaigns against us.
Last month's WikiLeaks release has thrust in the spotlight
an old, some would even say, arcane statute, the Espionage Act
of 1917. It has also resurrected an age-old debate on First
Amendment protections afforded to media publications.
But today we are confronted with a new kind of media, the
Internet blog. What are the boundaries of free speech, how do
we balance this freedom with the Government's need to protect
some information. The drafters of the 1917 Act could not have
foreseen that nearly 100 years later, sensitive information
could have been transmitted to a global audience
instantaneously. America's counterterrorism efforts must
respond to new and emerging threats such as home-grown
terrorism. Our criminal laws must also keep pace with advancing
technologies that enable widespread dissemination of protected
information. This time the leak involved primarily diplomatic
cables, but previous leaks disclosed even more sensitive
information.
And the next leak could be even more damaging. It could
disclose accordinance of where military personnel are located
overseas or even reveal the next unannounced visit to Iraq or
Afghanistan by President Obama. This isn't simply about keeping
government secrets secret, it is about the safety of American
personnel overseas at all levels from the foot soldier to the
commander-in-chief.
With that, Mr. Chairman, I yield back.
Mr. Conyers. Thank you, Judge Gohmert. This may be the last
time that we have an opportunity to recognize our good friend,
Bill Delahunt of Massachusetts. He has served the Committee in
a very important way, and we yield to him at this time.
Mr. Delahunt. Well, thank you, Mr. Chairman. You know, as
you are aware, I also serve on the Foreign Affairs Committee.
And during that service, I had the opportunity to Chair the
Committee on Oversight. And I must say, and this is true of
both the Bush and the Obama administrations, it was difficult
for me in that capacity, and it was difficult for the Chair of
the full Committee, to secure information from the executive. I
would submit that this particular hearing should be viewed in a
much larger context. Leaks that obviously put people at risk,
that put the United States at risk and methods, et cetera,
there has to be parameters.
But I think we are at a moment in our history where there
is an overwhelming overclassification of material. And I think
that we, in our role as Members of the first branch of
government, ought to examine very, very carefully that the
classification procedures. When you inquire of any executive
agency and pose the very simple question, well, why is it
classified? It is extremely difficult to get a direct and clear
answer. Who does the classification? Is it the Secretary of
State or the Attorney General? Who does the classification?
During the course of my service, I discovered it was some low-
level bureaucrat.
And the process itself is arcane, and there is no
accountability, I dare say, in the classification processes
that exist within the executive branch. And that is very
dangerous, because secrecy is the trademark of totalitarianism.
To the contrary, transparency and openness is what democracy is
about. So while there is a focus now on the issue of WikiLeaks,
I think it provides an opportunity for this Committee, and I
think this is a concern that is shared by both Republicans and
Democrats, about the classification process itself. There is
far too much secrecy and overclassification within the
executive branch, and I think it puts American democracy at
risk. And with that I yield back.
Mr. Conyers. Thank you, Bill. I am pleased now to turn to
Howard Coble of North Carolina, a senior Member, who will soon
be Chair of at least one Subcommittee, maybe two, we don't know
yet.
Mr. Coble. Mr. Chairman, you are more optimistic than I am,
but I appreciate that. I have no detailed statement. I want to
associate my remarks--yield my remarks regarding the gentleman
from Massachusetts. He will indeed be missed on this Committee.
This is a crucial issue as known to all of us. And not unlike
many crucial issues, and perhaps most crucial issues, it is
laced very generously with complications. Good to have the
panel with us. And, Mr. Chairman, I yield back.
Mr. Conyers. Judge, would you care to make an opening
comment?
Mr. Gonzalez. Mr. Chairman, I do not have any opening
comments regarding the testimony and such, just looking forward
to it. But I do want to just say good-bye to Bill. Obviously,
of the Massachusetts delegation, he is the one Member that I
can clearly understand despite that accent of theirs. But
truly, he has been a good friend, and again, just such a
valuable Member to the House, and he will be missed. But I am
hoping that, of course, he made the decision because he is
moving on to something that is going to be even more rewarding
than what he has done here in Congress. Again, thank you very
much, Mr. Chairman, for the opportunity. I yield back.
Mr. Conyers. Thank you, Judge Gonzalez. Judge Ted Poe, I
would recognize you at this time, sir.
Mr. Poe. Thank you, Mr. Chairman. I ditto what has been
said about Bill Delahunt, a wonderful Member of this Committee,
hate to see him go, although we disagreed probably on
everything.
A couple comments about this situation. I see two issues.
One issue is we got to find the original leak and what caused
it, who did it and hold them accountable. The other issues that
this brings forth is the fact that after 9/11, the big talk was
we need to share information with different agencies in the
United States Government because we don't know what one agency
is doing or knows that should be shared. And so now we have
mass sharing and now we seem like we are going to move away
from that because of this situation.
I have no sympathy for the alleged thief in this situation.
He is no better than a Texas pawnshop dealer that deals in
stolen merchandise and sells it to the highest bidder, but he
is doing it for political gain. He should be held accountable.
But, on the other hand, I am very concerned about our own
overclassification of information. The easiest way for a
government agency to take information is to say, it is
classified, only special folks get to know what is in it. And I
have been to a lot of classified briefings. And frankly, I have
read a lot of that in the newspaper before that meeting ever
took place, and it wasn't classified. Somebody just decides to
make it classified and then you have that whole problem of
overclassification of documents.
And lastly, the security of our information is important.
And we have to--those who allowed this to occur by
incompetence, negligence, or whatever, we have to fix that
problem. I am very concerned about that because of the fact
that, you know, I suppose we are the greatest and most powerful
Nation that ever existed, and we need to ratchet up our
security to keep hackers from getting into it, and why did this
occur and who allowed it to occur and what went wrong to make
this situation now go worldwide?
It is like a bunch of folks at a bank decide to hold a
Christmas party down the street and they all take off and leave
the vault open. You know, there is a security problem with that
kind of thing. And so I would hope that we would fix the
security problem, find out what occurred and how it did occur.
We ought to think through the idea of overclassification. And
then thieves for political reasons or any other reasons, they
also need to be held accountable. I yield back.
Mr. Conyers. Thank you, Judge Poe. We welcome our
witnesses, all seven. Ralph Nader, Professor Steve Vladeck, Mr.
Gabriel Schoenfeld, Attorney Kenneth Wainstein, Thomas Blanton,
Director of the National Security Archive, Attorney Abbe
Lowell, well known to this Committee and to previous
congresses.
And our first witness, Professor Geoffrey Stone, Professor
of Law and Former Dean of the University of Chicago Law School.
He has written quite a bit on constitutional law, several
books, The First Amendment, Government Power. One of his books,
Perilous Times, Free Speech in War Time, was just recently
praised by Justice Elena Kagen as a masterpiece of
constitutional history that promises to redefine the national
debate on civil liberties and free speech.
We are honored by you being here, and we ask you to be our
first witness. And all the statements of all of our witnesses
will be introduced in their entirety into the record. Welcome.
TESTIMONY OF GEOFFREY R. STONE, PROFESSOR AND FORMER DEAN,
UNIVERSITY OF CHICAGO LAW SCHOOL
Mr. Stone. Chairman Conyers, Judge Gohmert, Members of the
Committee, thank you very much for inviting me and giving me
this opportunity to speak with you about these issues. What I
would like to do is address the constitutionality of the
proposed SHIELD Act, which has been introduced in both Houses
of Congress.
The SHIELD Act would amend the Espionage Act of 1917 to
make it a crime for any person knowingly and willfully to
disseminate in any manner, prejudicial to the safety or
interest of the United States, any classified information
concerning human intelligence activities of the United States.
Now, although this act might be constitutional as applied
to government employees who unlawfully leak such material to
persons who are unauthorized to receive it, it is plainly
unconstitutional as applied to other individuals or
organizations who might publish or otherwise disseminate the
information after it has been leaked. With respect to such
other speakers, the Act violates the First Amendment unless, at
the very least, it is expressly limited to situations in which
the dissemination of the specific information at issue poses a
clear and imminent danger of grave harm to the Nation.
The clear and present danger standard in varying forms has
been a central element of our First Amendment jurisprudence
ever since Justice Oliver Wendell Holmes first enunciated it in
his 1919 opinion in Schenck v. the United States. In the 90
years since Schenck, the precise meaning of clear and present
danger has evolved, but the principle that animates it was
stated eloquently by Justice Louis Brandeis in his brilliant
1927 concurring opinion in Whitney v. California. ``Those who
won or our independence,'' wrote Brandeis, ``did not exalt
order at the cost of liberty. They understood that only an
emergency can justify repression. Such,'' he said, ``must be
the rule if authority is to be reconciled with freedom. Such is
the command of the Constitution. It is therefore always open to
challenge a law abridging free speech by showing that there was
no emergency justifying it.''
This principle is especially powerful in the context of
government efforts to suppress speech concerning the activities
of the government itself. As James Madison observed, ``a
popular government without popular information with the means
of acquiring it is but a prologue to a forest or a tragedy or
perhaps both.'' As Madison warned, if citizens do not know what
their own government is doing, then they are hardly in a
position to question its judgments or to hold their elected
representatives accountable.
Government secrecy, although surely necessary at times, can
also pose a direct threat to the very idea of self-governance.
Nonetheless, the First Amendment does not compel government
transparency. It leaves the government extraordinary autonomy
to protect its own secrets. It does not accord anyone the right
to have the government disclose information about its actions
or policies, and it cedes to the government considerable
authority to restrict the speech of its own employees.
What it does not do, however, is to leave the government
free to suppress the free speech of others when it has failed
itself to keep its own secrets. At that point, the First
Amendment kicks in with full force. And as Brandeis explained,
only an emergency can then justify suppression. We might think
of this like the attorney/client privilege. The client is free
to keep matters secret by disclosing them to no one. He is also
free to disclose certain matters to his attorney, who is under
a legal obligation to respect the confidentiality of the
client's disclosures.
In this sense, the attorney is sort of like the government
employee. If the attorney violates the privilege by revealing
the client's confidences, say, to a reporter, then the attorney
can be punished for doing so, but the newspaper cannot
constitutionally be punished for disseminating the information.
Now, some may wonder whether it makes sense to give the
government so little authority to punish the dissemination of
unlawfully leaked information, but there are sound reasons for
insisting on a showing of clear and present danger before the
government can punish speech in this context.
First, the mere fact that the dissemination of such
information might, in the words of the proposed Act, in any
matter, ``prejudice the interest of the United States'' does
not mean that the harm outweighs the benefit of publication, as
Chairman Conyers noted. In many circumstances, such information
may indeed be extremely valuable to public understanding.
Second, a case-by-case balancing of harm against benefit
would be unwieldy, unpredictable and impracticable. Clear rules
are essential in the realm of free speech. Indeed, that is one
reason why we grant the government so much authority to
restrict the speech of its own employees, rather than insisting
that in every case the government must demonstrate that the
harm outweighs the benefit.
Third, as we have learned from our own history, there are
great pressures that lead both government officials and even
the public to overstate the potential harm of publication in
times of national anxiety. A strict clear and present danger
standard serves as a barrier to protect us against that danger.
And finally, a central principle of the First Amendment is
that the suppression of public speech must be the government's
last rather than its first resort in addressing a potential
problem. If there are other means by which the government can
prevent or reduce the danger, it must exhaust those other means
before it can even entertain the prospect of suppressing the
freedom of speech.
In the secrecy situation, the most obvious and the correct
way for government to prevent the danger is by ensuring that
information that must be kept secret is kept secret, and is not
leaked in the first place. Indeed, the Supreme Court made this
very point less than a decade ago in a case known as Bartnicki
v. Vopper, in which the court held that when an individual
receives information from a source who has obtained it
unlawfully, that individual may not be punished for publicly
disseminating the information ``absent a need of the highest
order.''
The Court explained that ``if the sanctions that presently
attach to the underlying criminal act do not provide sufficient
deterrence, then perhaps those sanctions should be made more
severe.'' But it would be, the Court said, ``quite remarkable
to hold that an individual can constitutionally be punished
merely for disseminating information because the government
itself failed to deter conduct by a nonlaw abiding party.''
This may seem a disorderly situation, but the court has, in
fact, come up with a good solution. If we grant the government
too much power to punish those who disseminate information,
then we risk too great a sacrifice of public deliberation. If
we grant the government too little power to control
confidentiality at the source, then we risk too great a
sacrifice of secrecy. The solution is to reconcile the
irreconcilable values of secrecy, on the one hand, and
accountability, on the other, by guaranteeing both a strong
authority of the government to prohibit leaks, and an expansive
right of others to disseminate information to the public.
The bottom line then is this: The proposed SHIELD Act is
unconstitutional. At the very least, it must limit its
prohibition to those circumstances in which the individuals who
publicly disseminated classified information knew that the
dissemination would create a clear and imminent danger of grave
harm to our Nation or our people. Thank you.
Mr. Conyers. Thank you very much, Professor.
[The prepared statement of Mr. Stone follows:]
Prepared Statement of Geoffrey R. Stone
__________
Mr. Conyers. Our next witness is well known here, Abbe
Lowell, Esquire, partner at McDermott, Will & Emery. As a
matter of fact, he served as chief counsel during the President
Bill Clinton impeachment. He is also a former special assistant
to the Attorney General, and is well known for his criminal
defense work, particularly in espionage matters, including the
2007 AIPAC case. We welcome you back here again, Abbe. You may
proceed.
TESTIMONY OF ABBE DAVID LOWELL, PARTNER,
McDERMOTT WILL & EMERY, LLP
Mr. Lowell. Thank you, Mr. Chairman and Judge Gohmert. It
is always an honor to be in this particular room. I appreciate
you receiving my statement. Let me say that the perspective I
bring is, as the Chairman said, comes from basically three
points of reference. The first is my service in the Justice
Department for the Attorney General when issues of
classification were being discussed. The second is 4\1/2\ years
of litigating under the Espionage Act in the so-called AIPAC
lobbyist case that ended 30 days before trial when the Justice
Department stopped it and now representing a former Department
of State employee also charged under the Espionage Act.
These oversight hearings could not be more important or
more timely to look at this principal law that is used whenever
cases like the AIPAC lobbyist case and now the WikiLeaks case
make the news. However, this law, as everyone has said, is
about 100 years old and it had flaws in it in terms of its
language from the moment it was passed, and it has certainly
shown to be outdated, at least ever since the debate that
occurred in the Pentagon Papers case in 1971.
However, as the Chair has said, for all those commentators
who are demanding that Congress do something here and now, this
Committee knows better that headline news is not the time to
pass a new criminal law, especially when there are important
constitutional principles at stake, because that inevitably
leads to decades of unintended consequences and litigation.
So what this Committee is doing to begin the process of
carefully considering these complicated issues is precisely the
way to go, and it is the speed in which to travel. Let me start
by issuing what I think are the four corners of the discussion.
The first is is that everyone agrees that there is a need for a
strong criminal law to address real spying and espionage, to
address the intentional disclosure of what could be called
classified national defense information with the intent to
injure the United States or to assist an adversary.
There needs to be a law prohibiting the mishandling of
properly classified information and against those three
important national security principles needs the balance of
protecting important constitutional rights. The problem is that
the current law lumps all that I have said together, and the
sections of the current law apply equally and have been applied
equally when they are being used to go after a former FBI agent
spy, Robert Hanssen, in disguise in secret in drop zones or two
foreign policy analysts having a spaghetti lunch across the
river near the Pentagon.
And any law that can apply to those two circumstances is
the law that needs to be carefully scrutinized. One more
introductory remark, if I may, and this has already been said
by everybody across the way from me, when Congress starts
deciding how to criminalize the disclosure of classified
information, it should take into consideration how much
overclassification there really is.
We have seen in the WikiLeaks events material that bear a
classification stamp that simply recounts what some diplomat
believes is the private life preferences of a foreign leader as
opposed to when we are worried about what that foreign leader
might do in a military action when properly or improperly
provoked, yet they both bear the same classification stamp.
The problems of the law are many. The current law, the
Espionage Act particularly, is so vague and so broad because it
deals with words that don't have obvious meanings, such as
information relating to the national defense, so that they can
be applied immediately to a government employee who signs a
confidentiality agreement, and then it could be applied to the
foreign policy analyst who meets with that government employee
and discusses what the government employee knew. And then it
could be applied to a reporter who is overhearing the
conversation between the government employee and the analyst
and prints a story.
Not only that, the current laws can be applied to each of
these individuals whether or not there is an actual document
involved, or whether the subject of the leak is an oral
conversation. And not only that, a prosecution can be brought
without the requirement of any of the disclosures involving an
actual intent to injure the United States or to assist an
adversary. And all this is made more complicated when there are
good motives involved, such as somebody trying to bring to the
attention of the public a lie the government has stated, or a
corrupt contract, or when the press is doing its job or when
lobbyists are doing theirs.
Because as the cases state, the First Amendment applies to
the exchange of speech and ideas in our free society, whether
the information is general foreign policy material or whether
it happens to be classified, so the issue is the balancing of
the very real and important national security interests of the
United States in ever dangerous times.
Over the past few decades, courts have grappled how best to
apply the words of the law to these situations. In the AIPAC
lobbying case, for example, the court made clear that to
sustain a case under the Espionage Act, the government would
have to prove beyond a reasonable doubt that the defendants had
a specific criminal intent to injure the United States and that
they acted in bad faith.
Now that there is the public disclosure of WikiLeaks and
Julian Assange, with thousands of documents, these same
questions arise again. Does the law apply extraterritorially?
Is he or is he not a journalist? Is there the ability to show
an intent to injure? All of those are the beginning and not the
end. So while the courts are straightjacketed, this Committee
in Congress is not, it can operate on a clean slate. And as I
have indicated in my statement, let me give you what I think
are five principles that any new law should consider: First, we
must define spying differently from leaking; second, we need to
define what classified information, the release of which can
ever be subject to criminal prosecution; third, we must
distinguish between disclosures of classified information done
with an intent to injure the United States, and those where a
person is not acting with that criminal intent; fourth, we must
allow for some defense when information is improperly
classified or when that information is so out in the public,
that to base a criminal prosecution on it defies the notions of
fairness and due process; and last, we need a law that will
rationalize how it is possible to apply it to government
officials and nongovernment officials, especially when those
nongovernment officials are protected by the First Amendment.
That is easier said than done. This is the beginning I know
of a long process. I know it is possible to balance those two
interests, and along with my panel members, I stand ready to
help in any way I can.
Mr. Conyers. Thank you, Abbe Lowell.
[The prepared statement of Mr. Lowell follows:]
Prepared Statement of Abbe David Lowell
__________
Mr. Conyers. Our next witness, Kenneth Wainstein, is well
known to the Committee as well. He testified here last year.
And he also testified as the assistant attorney general on
national security. So we welcome him back. He is a partner at
O'Melveny & Myers. And he has a particular point of view that
the Committee feels is very important that we hear at this
time.
TESTIMONY OF KENNETH L. WAINSTEIN, PARTNER, O'MELVENY & MYERS,
LLP
Mr. Wainstein. Thank you very much, Chairman Conyers, Judge
Gohmert, Members of the Committee. It is an honor to appear
before you today along with this panel of very distinguished
experts----
Mr. Conyers. Pull the mic closer to you, please.
Mr. Wainstein. There you go. I missed the on button. I want
to thank you again, you, Judge Gohmert, Members of the
Committee. It is an honor to appear before you today along with
this panel of distinguished experts and to testify about the
recent WikiLeaks releases. This situation reflects a
fundamental tension in our democracy. On one hand, there is the
importance of the free press and the need to think very long
and very hard before taking any steps that may chill the
media's reporting on the workings of government.
On the other hand, there is the need to keep our national
security operations confidential so that we can effectively
defend our Nation against the threats it faces. Stephen Vladeck
and I testified about this very issue before the Senate
Judiciary Committee just this May, and at that time, our
concern revolved primarily around the possibility of a leak to
a traditional news organization.
Since May, however, we have all learned that there is a
much more serious threat, a threat posed by an organization
that is committed not to the traditional media function of
reporting newsworthy information, but to the mass and
indiscriminate disclosure of sensitive information.
Thanks to WikiLeaks the government now has two very
important decisions to make. The first is whether to prosecute
Assange and WikiLeaks. The second is whether to revise the laws
of the Espionage Act to strike a better and clearer balance
between security and freedom of the press.
In terms of prosecution, the stakes for the government are
very high. If WikiLeaks and Assange end up facing no charges
for their mass document releases, which are about as audacious
as I have ever heard of, they will conclude that they are
legally invulnerable, they will redouble their efforts to match
or exceed their recent exploits and copycat operations will
sprout up around the Internet.
I was encouraged to hear the Attorney General's remarks the
other day, and I commend the Justice Department for apparently
undertaking a careful but determined effort to look into
mounting a prosecution. If this effort does, in fact, ripen
into a criminal case against Assange and WikiLeaks, it will
certainly raise a host of hotly litigated issues, the most
heated of which will be a strong constitutional challenge under
the First Amendment.
The main issue here will be the following: If WikiLeaks can
be charged with espionage for these releases, there is no legal
and no logical reason why a similar prosecution could not lie
against all the other mainstream news organizations because
those organizations, at one time or another, published
similarly sensitive materials. And if every news outlet in our
country is in fear of prosecution then what happens to freedom
of the press?
This surely is a serious concern. It is the reason why the
government has never prosecuted a news organization for
espionage, and it is the reason that we all should pause and
think through the implications before charging into a
prosecution here. The key to overcoming this concern is to
demonstrate that WikiLeaks warrants this exceptional treatment
because it is fundamentally different from other and real media
organizations, by showing, for instance, that while the media
focuses on disseminating newsworthy information, WikiLeaks
focuses, first and foremost, on simply obtaining and disclosing
official secrets. While the media gathers news through
investigative reporting, WikiLeaks uses encrypted Internet drop
boxes that are specifically designed to collect leaked
information and circumvent the law. While the media typically
publishes only those pieces of sensitive information that
relate to a particular story, WikiLeaks indiscriminately
releases huge troves of leaked materials.
By clearly showing how WikiLeaks is fundamentally
different, the government should be able to demonstrate that
any prosecution here is the exception and is not the sign of a
more aggressive prosecution effort against the press.
The government's second decision here is whether to revise
the Espionage Act. All agree that the statute is badly
outdated, and it could use revision on a number of points such
as clarifying the level of intent required to prosecute a leak
case; determining when the government does and does not need to
show that the leak actually risked damage to our national
security before proceeding with a case; dropping the term
national defense information and providing a clear definition
of that information that is protected by the Espionage Act.
A clarification of these issues would go a long way toward
making the statute more directly relevant to the espionage
threats of the 21st century.
WikiLeaks presents a challenge for the executive branch,
which now has to decide how to respond to these disclosures,
but it also presents a serious challenge for Congress, which
has to decide whether we need new statutory tools to deal with
this new threat.
I commend the Committee for stepping up to this challenge.
Given the fundamental importance of this issue to our civil
liberties and to our national security, I am confident it will
be time well spent. I appreciate you including me in this
important effort, and I stand ready to answer any questions you
may have. Thank you, Mr. Chairman.
Mr. Conyers. We appreciate you coming before us once again.
[The prepared statement of Mr. Wainstein follows:]
Prepared Statement of Kenneth L. Wainstein
__________
Mr. Conyers. I think most people on the Committee are
resigned to the fact that we have to look at the Espionage Act
in the coming Congress. The question is, of course, what do we
do and how much change? We will be talking about that with you
when we begin our question period. Welcome, Mr. Schoenfeld,
senior fellow at Hudson Institute, a well-known author of
Necessary Secrets: National Security, the Media and the Rule of
Law. You have testified in Congress on the responsibilities of
the press during wartime, and we welcome you to the Judiciary
Committee this morning.
TESTIMONY OF GABRIEL SCHOENFELD, Ph.D.,
SENIOR FELLOW, HUDSON INSTITUTE
Mr. Schoenfeld. Thank you very much, Mr. Chairman, Judge
Gohmert, distinguished Members of the Committee. It is an
honor----
Mr. Conyers. I am afraid it is not on.
Mr. Schoenfeld. It is an honor, Mr. Chairman, Judge
Gohmert, distinguished Members of the Committee, to appear here
today before you to discuss this issue of such vital concern to
our country. The recent massive disclosure by WikiLeaks of U.S.
diplomatic documents has sparked the most intense discussion of
governmental secrecy in our country since the Pentagon Papers
were published by the New York Times in 1971. Leading officials
of the Obama administration have decried the damage. Ranking
Republicans and Democrats in Congress have called for the
prosecution of Julian Assange under the Espionage Act.
Whether or not the Administration takes legal action
against Mr. Assange, we should not lose sight of the broader
context in which this episode has occurred. And I would like to
note several of its significant features. First, we live in the
most open society in the history of the world. Thanks in part
to an unfettered press and the First Amendment, and thanks in
part to laws like the Freedom of Information Act and the
Presidential Records Act, we as a country are extremely well
informed about what our government does in our name.
Second, even as we are a wide open society, we have too
much secrecy. Numerous observers across the political spectrum
concur, as we here on the panel seem to be concurring today,
that there is a great deal of mis- and overclassification
within our national security bureaucracies.
Third, owing in part to mis- and overclassification, the
leaking of secret information to the press has become part of
the normal informal process by which the American people are
kept informed. A study by the Senate Intelligence Committee
counted 147 disclosures of classified information that made
their way into the Nation's eight leading newspapers in one 6-
month period alone. None of these leaks resulted in legal
proceedings.
Fourth, many leaks are innocuous and/or authorized. For
example, Bob Woodward's recent book, Obama's Wars, is replete
with code names and descriptions of classified programs. No one
has pointed to any specific damage caused by this book, perhaps
because the only damage done was to the integrity of the
secrecy system itself.
Fifth, some leaks are unauthorized and exceptionally
damaging. In 2006, to take one example, The New York Times
revealed details of a joint CIA Treasury program to monitor the
movement of al Qaeda funds via the Belgium financial clearing
house known as SWIFT. The Times published the story against the
strenuous objections of leading government officials in both
parties.
There is reason to believe that our ability to track the
flow of al Qaeda and Taliban funds was severely hampered by the
publication of a story that provided few discernible benefits
to the public, if any.
So I have sketched here a structure riddled with
contradictions. On the one hand, we are a wide open society. On
the other hand, we have too much secrecy. On the one hand, we
have authorized and innocuous leaks of government secrets. On
the other hand, we have unauthorized and highly dangerous
leaks.
And this is a very unsatisfactory state of affairs, and we
have begun to pay a high price for it. And there are five
things we need to do in my judgment, all of them interlinked.
First, we need to devote more attention and resources to
declassification to combating overclassification. Fewer secrets
and a more rational secrecy policy will help us to preserve
truly necessary secrets.
Second, we need to make sure that legitimate whistleblowers
have viable avenues other than the media to which they can
turn.
Third, we need to reestablish deterrents and prosecute
those in government who violate their confidentiality
agreements and pass secrets to the press or to an outfit like
WikiLeaks. The Obama administration has been doing this with
unprecedented energy. The last 24 months have witnessed four
prosecutions of leakers, more than all previous presidencies
combined.
Fourth, we need, at the very least, to bring down the
weight of public opprobrium on those in the media who
disseminate vital secrets. In this body, the House of
Representatives, contributed to that effort in 2006 when it
passed a resolution reprimanding The New York Times and other
news organizations for revealing the SWIFT monitoring program.
And finally, we sometimes need to take legal action. We
have never had a prosecution of a media outlet in our history,
although we came close during World War II when The Chicago
Tribune revealed that we had broken Japanese naval codes. Well,
I believe that the First Amendment would not protect a news
outlet that endangered the Nation as The Chicago Tribune did in
1942. Reasons of prudence suggest that such a prosecution
should be a last resort used against the media outlet only in
the face of reckless disregard for the public safety.
WikiLeaks, whether it is or is not a news organization, has
certainly exhibited such reckless disregard. Thanks in part to
the march of technology, it has been able to launch what might
be called LMDs, leaks of mass disclosure, leaks so massive in
volume and so indiscriminate in what they convey that it
becomes very difficult to assess the overall harm precisely
because there are so many different ways in which that harm is
occurring.
The purpose of these leaks is to cripple our government,
which Mr. Assange believes is a ``authoritarian conspiracy''.
But the United States is not such a conspiracy. It is a
democracy. And, as a democracy, it has every right to create
its own laws concerning secrecy and to see to it that those
laws are respected. And as a democracy it has every right to
protect itself against those who would do it harm.
Thank you very much for your attention.
[The prepared statement of Mr. Schoenfeld follows:]
Prepared Statement of Gabriel Schoenfeld
__________
Mr. Conyers. Thank you so much, Mr. Gabriel Schoenfeld.
Our next witness, Professor Steve Vladeck, is professor of
law at American University. He was part of the legal team that
successfully won Hamdan v. Rumsfeld, challenging former
President George W. Bush's use of military tribunals. He is
well-known to the judiciary; and as the WikiLeaks controversy
has unfolded, he has further distinguished himself as one of
the foremost national experts on the matter.
We welcome you here.
TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW, AMERICAN
UNIVERSITY
Mr. Vladeck. Thank you, Mr. Chairman.
Chairman Conyers, Judge Gohmert, distinguished Members of
the Committee, thank you very much for inviting me to
participate in this important hearing. I hope my testimony
won't sound too much like a broken record.
You know, testifying before the House Permanent Select
Committee on Intelligence in 1979, Tony Lapham, who was then
the general counsel of the CIA, describes the uncertainty
surrounding the scope of the Espionage Act as ``the worst of
both worlds''. As he explained, on the one hand, the laws stand
idle and are not enforced at least in part because their
meaning is so obscure; and, on the other hand, it is likely
that the very obscurity of these laws serves to deter perfectly
legitimate discussion and debate by persons who must be as
unsure of their liabilities as I am unsure of their
obligations.
Whatever one's views of WikiLeaks as an organization, of
Julian Assange as an individual, or of public disclosures of
classified information more generally, recent events have
driven home Lapham's central critique that the uncertainty
surrounding this statute benefits no one and leaves many
questions unanswered about who may be held liable and under
what circumstances, for what types of conduct.
In my testimony today I would like to briefly identify five
distinct ways in which the Espionage Act as currently written
creates problematic uncertainty and then, time permitting,
suggest potential means of redressing these defects.
First, as the title suggests and as Mr. Lowell testified,
the Espionage Act of 1917 was designed and intended to deal
with classic acts of espionage, which Black's Law Dictionary
defines as ``the practice of using spies to collect information
about what another government or company is doing or plans to
do.''
As such the plain text of the Act fails to require its
specific intent either to harm the national security of the
United States or benefit a foreign power. Instead, the Act
requires only that the defendant know or have reason to believe
that the wrongfully obtained or disclosed national defense
information is to be used to the injury of the United States or
to the advantage of any foreign power.
No separate statute, as this Committee knows, deals with
the specific and, in my view, distinct offense of disclosing
national defense information in non-espionage cases. Thus, the
government has traditionally been forced to shoehorn into the
Espionage Act three distinct classes of cases that raise three
distinct sets of issues: classic espionage, leaking, and the
retention or redistribution of national defense information by
private citizens.
Again, whatever one's view of the merits, I very much doubt
that the Congress that drafted the Espionage Act in the midst
of the First World War meant for it to cover each of these
categories, let alone cover them equally.
Second, the Espionage Act does not focus solely on the
initial party who wrongfully discloses national defense
information but applies in its terms to anyone who knowingly
disseminates, distributes, or even retains national defense
information without immediately returning the material to the
government officer authorized to possess it. In other words,
the text of the Act draws no distinction between the leaker,
the recipient of the leak, or the 100th person to redistribute,
retransmit, or even retain the national defense information
that by that point is already in the public domain. So long as
the putative defendant knows or has reason to believe that
their conduct is unlawful they are violating the Act's plain
language regardless of their specific intent and
notwithstanding the very real fact that by that point the
proverbial cat is long since out of the bag.
Third, and related, courts struggling with these first two
defects have reached a series of disparate conclusions as to
the requisite mens rea that individuals must have to violate
the Act. Thus, and largely to obviate First Amendment concerns,
Judge Ellis in the AIPAC case that Mr. Lowell testified about,
read into the Espionage Act a second mens rea. As he explained,
whereas the statute's willfulness requirement obligates the
government to prove that defendants know that disclosing
documents could threaten national security, and that it is
illegal, it leaves open the possibility that defendants could
be convicted for these acts despite some salutary motive. By
contrast, the reason to believe requirement that accompanies
disclosures of information, as distinct from documents,
requires the government to demonstrate the likelihood of the
defendant's bad faith purpose to either harm the United States
or to aid a foreign government.
Whether or not one can meaningfully distinguish between the
disclosure of documents and the disclosure of information in
the digital age, it is clear at the very least that nothing in
the text of the statute speaks to the defendant's bad faith.
Nor is there precedent for the proposition that willfulness,
which the Espionage Act does require, is even remotely akin to
bad faith. In other words, courts have basically stumbled
around to try to mesh the First Amendment concerns with the
very vague and sweeping language of the statute.
Fourth, and briefly, the potentially sweeping nature of the
Espionage Act as currently written may inadvertently interfere
with Federal whistleblower laws. For example, the Whistleblower
Protection Act protects the public disclosure of a violation of
any law, rule, or regulation only if such disclosure is not
specifically prohibited by law and if such information is not
specifically required by executive order to be secret in the
interest of national defense or the conduct of foreign affairs.
Similar language appears in most other Federal whistleblower
statutes.
I daresay the government would be reluctant to prosecute an
individual who complied with Federal whistleblower laws, but I
think that the statute could be amended to remove that within
the realm of possibility.
And, finally--I won't even talk about this in detail,
because it was already been mentioned by my colleagues--the
problem of overclassification. Should there be a defense for
improper classification? How do we actually attack the real
elephant in the room when we are talking about the disclosure
of things that perhaps should never have been kept secret in
the first place?
What is to be done. Perhaps unsurprisingly in light of my
observations above and those of my colleagues, I would
recommend three distinct sets of changes to the Espionage Act:
First, introduce a clear and precise specific intent
requirement that constrains the scope of the Espionage Act to
cases where the defendant specifically intends the disclosure
to harm national security and/or to benefit a foreign power. I
think you have already heard this from Mr. Lowell.
Second, create a separate, lesser offense for unauthorized
disclosures and retention of classified information and
specifically provide either that such a prohibition does or
does not cover the public redistribution of such information,
including by the press. If this Committee and body does decide
to include press publication, my own view is that the First
Amendment requires the availability of any number of
affirmative defenses that the disclosure was in good faith;
that the information was improperly classified; that the
information was already in the public domain; and/or that the
public good resulting from the disclosure outweighs the
potential harm to national security.
Third, and finally, include in both the Espionage Act and
any new unauthorized disclosure statute an express exemption
for any disclosure that is covered by an applicable Federal
whistleblower statute.
Mr. Chairman, in summation, writing in a Law Review article
about 40 years ago, Hal Edgar and Benno Schmidt, two Columbia
Law School professors, wrote that ``we have lived since World
War I in a state of benign indeterminacy about the rules of law
governing defense secrets.'' If anything, such benign
indeterminacy has only become more pronounced in the last 40
years and, if recent events are any indication, increasingly
less benign.
Thank you for the invitation to testify. I look forward to
your questions.
[The prepared statement of Mr. Vladeck follows:]
Prepared Statement of Stephen L. Vladeck
__________
Mr. Conyers. Well, you have left us with some very large
challenges, Professor Vladeck. We appreciate it very much.
Our next witness is the Director of the National Security
Archive at George Washington University, Professor Thomas
Blanton. In the year 2000, the Archive won the George Polk
award for ``piercing self-serving veils of government secrecy,
guiding journalists in search of the truth and informing us
all.'' He is also the founding editorial board member of
freedominfo.org, a network of international freedom of
information advocates.
I read your prepared statement with great enthusiasm, and
we are happy to have you here today.
TESTIMONY OF THOMAS S. BLANTON, DIRECTOR, NATIONAL SECURITY
ARCHIVE, GEORGE WASHINGTON UNIVERSITY
Mr. Blanton. Mr. Chairman, it is a great honor for me, and
Judge Gohmert and also to be in the middle of this
extraordinary high-level tutorial in the Espionage Act and the
Constitution. I feel like a grad student again; and it is a
joy, actually.
I also wanted to thank you, Mr. Chairman, for resurrecting
my graveyard quote, that we have low fences around vast
prairies of government secrets where we really need tall fences
around small graveyards of the real secrets; and that is a core
point I want to come back to today.
I really have three points. One of them is the government
always overreacts to leaks, always; and all you have to do is
say the phrase ``Watergate plumbers'' and you know what I am
talking about.
Back then, they were discussing firebombing the Brookings
Institution on the chance there might still be a copy of the
Pentagon papers in there. Today, you are having debates on FOX
news: Let's do some targeted assassination attempts on Julian
Assange.
Well, I have to say G. Gordon Liddy would be right at home,
and both is absurd. And the overreaction the government
typically does is not to kill anybody or to firebomb something
but to go right to the second major point I want to make today.
They are going to classify more information.
What I am worried about most is the backlash. I mean, in my
prepared statement, I have got multiple examples of all the
estimates, and they range from 50 percent to 90 percent, of
what the problem of overclassification really amounts to.
Governor Tom Kean, head of the 9/11 Commission, after looking
at all of the al Qaeda intelligence that we gathered before 9/
11, said, you know, 75 percent of what I saw that was
classified should not have been. And the Commission said we not
only needed to do information sharing between the agencies, we
had to do information sharing with the American people, because
that is the only way we can really protect ourselves. What a
great lesson that is.
The system is so overwhelmed with the secrets that we can
no longer really protect the real ones and we can't let out the
ones that would actually keep us all safer.
And I think it is a mistake to try to see this as a
balancing test. It is not a balance between openness and
security. The findings of the 9/11 Commission were that more
openness would have made us more secure. That is what you do an
in open society to keep yourself safe. You are not safer in the
dark. You don't hide your vulnerabilities. You expose them and
you fix them. That is how we proceed in America.
The third point I just want to make about where we are
today. We are in the middle of a syndrome that one senior
government official I really respect holds all the clearances,
does the audits, pushes back against excessive secrecy, called
it Wikimania. We are in the middle of Wikimania, and it is
going to lead to so much more heat than light. Targeted
assassination is only the most extreme case, but look at all
the other proposals we have got on the table and the front
burners to try to push back, to punish WikiLeaks, to push back
against speech.
I think the problem here is we have got to look at each one
of those proposals and say, is that really going to address the
problem? Is it going to reduce government secrecy or is it
going to add to it? Is it going to make us more safe? Is it
going to make us more free? And do that test.
The Wikimania is really coming from a series of what in my
statement I call Wikimyths. There has not been a documents
dump. Everybody uses that phrase. There hasn't been one. The
less than 2,000 cables are on the public record today out of
that big database, and the editors of Le Monde and the Guardian
and New York Times say that WikiLeaks is consulting with them
about what to publish, what to redact and doing the dialogue
with government officials in a pretty extraordinary,
responsible way.
It is a very different posture, I should say, than
WikiLeaks had even 6 or 8 months ago. I think the criticism
they have gotten from journalists like us and from the public
about endangering people's lives in Afghanistan and elsewhere,
believe it or not, I think they have actually heard it.
There is no epidemic of leaks. In fact, all four of the big
WikiLeak publicity spats have come from a single person as far
as we know, Bradley Manning, a young private.
So how do you solve the Bradley Manning problem? Well, you
could do a pretty simple thing. The Defense Department has
already done it. And here is a rational security policy. Just
like you got two people to launch nuclear missiles, you have go
two people to handle a communications manual that has codes in
it, have two people before you can download something from a
secure network. Pretty simple. That would have stopped Bradley
Manning. Mormons send out two people as missionaries because
that is how you have accountability, right? You don't have
solos. All right.
There is no diplomatic meltdown from the WikiLeaks. I mean,
there is a lot of heatedrhetoric. But Secretary of Defense
Robert Gates who ought to know--he served every President in my
lifetime, as far as I can tell--and, Mr. Chairman, you quoted
his remarks. Yeah, it is awkward, yeah, it is embarrassing,
but, no, it is not a meltdown. It will make the job harder for
diplomats. Maybe somebody is going to have to be reassigned.
But, you know, in the long run, it is probably in the American
national security interest for more foreign governments to be
more accountable to their own citizens for their diplomacy. It
is probably in our national security interest for the King of
Saudi Arabia to actually be on the public record a little more
often and the China politburo members to get exposed every now
and then. That might be a long-term goal of what American
national security diplomacy ought to be about.
And, finally, there is not a set of Wiki terrorists. I have
heard that phrase batted around. They are not terrorists.
I have to tell you, I wish every terrorist group in the
world would write the U.S. ambassador in their local town, you
know, days or a week before they are about to launch something,
and ask the ambassador, hey, would you help us, you know, make
sure nobody innocent gets hurt? Would you really work with us?
We would be glad to talk to you.
And I understand why the ambassadors didn't believe them.
Because WikiLeaks said, oh, and, by the way, we will keep
anything you say to us confidential. It is hard to square with
the previous statements of WikiLeaks.
But I wish every terrorist group would get into partnership
with Le Monde and El Pais and the Guardian and the New York
Times to assess what the damage might be, to redact their own
documents, to put regulators on the bombs they drop. That would
be a good thing. WikiLeaks is not terrorists.
And so that brings me to my final real point and
recommendation to this Committee and to the prosecutors across
the river in Alexandria: Just restraint. I know you don't
usually have witnesses come up here and say, hey, let's all go
take a nap. But you know in sleep-deprived Washington we might
could use a little more restraint.
I would say leave the Espionage Act back in mothballs where
it is right now and should stay. And in fact what we know is
from some freedom of information requests there are still some
classified documents from 1917 that will give the Espionage Act
very good company. Don't mess with it. Leave it alone.
Our fundamental test should come out of Justice Stewart's
dicta in the Pentagon papers case and some wonderful articles
that Jack Goldsmith has actually written in the last couple of
years where he says, look, our problem is, you know, the
fundamental cause of leaks is a sense of illegitimacy that is
bred by excessive government secrecy.
How do you address that? You reduce the secrecy. How do you
deal with the legitimacy problem? You make sure as few secrets
as possible are actually held and you protect those very
strongly.
So the test is, for all these proposals, legislative and
otherwise, does it send a signal that will actually reduce
government secrecy? Does it send a signal that we need maximum
possible disclosure, in Stewart's phrase, to have a system that
actually has credibility and can protect the real secrets and
where we can protect ourselves?
I thank you, Mr. Chairman, for this opportunity to engage
in this debate. I hope it will reduce the mania a little bit
and cut through some of the myths. Thank you, sir.
[The prepared statement of Mr. Blanton follows:]
Prepared Statement of Thomas S. Blanton
__________
Mr. Conyers. Thank you so much.
Ralph Nader is well-known, a leading advocate, an author, a
lawyer, a Presidential candidate. But Atlantic Monthly has
named him one of the 100 most influential Americans in history,
and I thought I would put that in the record so that more
people than read the Atlantic Monthly would know about it.
We welcome you once again to the Judiciary Committee, Ralph
Nader.
TESTIMONY OF RALPH NADER,
LEGAL ADVOCATE AND AUTHOR
Mr. Nader. Thank you, Mr. Chairman, Congressman Gohmert,
and the other Members of the Committee for this important and
timely hearing. A lot of interesting good points have just been
made, and there is no point for redundancy.
I would like to mention that we ought to look at the issue
of government secrecy and government openness with historic
cost benefit evaluation. I worked with Congressman John Moss in
1966 on the first Freedom of Information Act, and I saw the
fervent opposition of the bureaucrats in the executive branch
to what was then a rather modest piece of legislation. I then
worked with him on strengthening 1974 Freedom of Information
amendments which made our Freedom of Information Act arguably
the best in the world, and I also saw the same opposition. I
think that people like Daniel Patrick Moynihan in his book on
government secrecy point out that one of the first victims of
government secrecy is the Congress itself.
The Congress repeatedly has been repudiated from getting
the information in order to perform its constitutional
responsibilities such as its warmaking power, its oversight
subpoena power, its appropriations deliberations, and many
others. Bruce Fein has decried this deprivation of information
by the executive branch, vis-a-vis Congress, as a principal
cause of weakening what is supposed to be the most powerful
branch of our government.
If you look at the historical record, the benefits of
disclosure vastly outweigh the risks that come from disclosure.
Wars could have been prevented if the American people knew what
was going on in the Spanish American war, in World War II, in
the Tonkin Gulf resolution, if the American people knew was
going on before the invasion of Iraq with the lies, the cover
ups, the distortions that now have been historically documented
by the Bush administration, including Richard Clarke, the
antiterrorism counselor to President Bush, among many.
What is fascinating about this WikiLeaks controversy is
that we have to avoid it becoming a vast distraction, focusing
on these so-called leaks instead of focusing on the abysmal
lack of security safeguards by the executive branch of the U.S.
Government and making those who set up this porous system or
who allowed it to be penetrated accountable.
The distraction also is away from the lack of account for
executive branch officials who suppress information. How many
times have you seen those people prosecuted at the highest
levels and the middle levels of government? The suppression of
information has led to far more loss of life, jeopardization of
American security, and all the other consequences that are now
being attributedto WikiLeaks and Julian Assange.
A million Iraqis have died as a result of the invasion,
5,000 U.S. soldiers, 100,000 sick and injured and traumatized,
a country blown apart, more violent opponents to our country,
more national insecurity.
We have to be very careful here that the Congress does not
stampede itself by executive branch pressure to repeat the
PATRIOT Act debacle when this Committee issued a pretty sound
piece of legislation with hearings, bipartisan, and then was
stampeded along with the rest of the Congress by Karl Rove and
George W. Bush with this notorious PATRIOT Act. Stampeded
legislation always comes back to haunt its authors.
Furthermore, I am very disturbed by the reaction of
Attorney General Holder. I think he is reacting to political
pressure, and he is starting to fix the law to meet the
enforcement policy, and that is very dangerous. He said the
other day, ``The national security of the United States has
been put at risk, the lives of the people who work for the
American people have been put at risk, the American people
themselves have been put at risk by these actions that I
believe arrogant, misguided, and ultimately not helpful in any
way.'' Referring to the WikiLeak disclosures via the New York
Times and the Guardian and other newspapers.
Those very words could apply to the Bush administration and
the Obama administration's military and foreign policy, that
they would put us in greater risk. And it is very important for
us, especially represented by Congress, that the penchant for
secrecy is not nourished further by the WikiLeaks events which
are going to unfold in greater magnitude in the coming weeks to
leave millions of citizens in our country with a debilitating
dictatorial vulnerability to further concentration of
authoritarian power in the executive branch.
Floyd Abrams, not known as a radical, arguably the leading
First Amendment practitioner in the country, said, in
responding to Senator Lieberman's precipitous urging for Holder
to indict Assange, he said, ``I'd say the potential risks
outweigh the benefits of prosecution. I think the instinct to
prosecute is rational, and I don't mean to criticize the
government for giving it serious consideration, but at the end
of the day I think it could do more harm to the national
security properly understood than letting it go.''
Jefferson and Madison had it right. Information is the
currency of democracy, freedom of speech is inviable, and I
would add that secrecy is the cancer, the destroyer of
democracy.
We have overwhelming examples, some of which were in your
statement, Mr. Chairman, of what happens when information paid
for by the taxpayer, reflective of the public's right to know,
is kept secret. If you take all of the present and probable
future disclosures under the WikiLeaks initiative, the vast
majority should never have been classified, the vast majority
are reprehensible use of people employing taxpayer dollars, the
vast majority should have been disclosed, if not never stated,
for the benefit of the American people to hold their government
accountable.
Forbes magazine in a cover story in its edition December
20th outlines in an interview with Julian Assange that early
next year the beginning of the disclosure of corporate
documents will start. Early next year, Forbes said, ``A major
American bank will suddenly find itself turned inside out. Tens
of thousands of its internal documents will be exposed on
WikiLeaks.org with no polite request for executives' response
or other forewarnings.''
Now the importance of that is the danger of the following
coalition appearing in the coming months. You have the
government bureaucrats who transcend political parties, the
government bureaucrats and the corporate executives who want to
destroy the provision for whistleblower protection in the new
Financial Reform Act as we speak, that they band together in
order to focus on the WikiLeaks and try to stampede Congress
and perhaps public opinion into enacting legislation that will
further stifle the right of the American people to know and
further enhance those who believe that the few can decide for
the many and that concentrated power in the executive branch
can make a mockery out of the constitutional authority
reposited in the U.S. Congress.
We hear a lot about the information age, and we hear a lot
about what it is supposed to do for us. But the risk in this
WikiLeaks' overreaction to control of the Internet and to
damaging a dissemination of compilation and access to
information worldwide is very, very serious. That is only one
of the consequences that can occur if the Congress allows
itself to overreact and if the press does not take a measured
view and hold to account those who are calling for executive
assassinations, for repressions, for the detonation of due
process against people who have received information from
internal government sources.
I think the proper range of government security is now
being deliberated in the executive branch, but it needs to be
stimulated by Congress.
At DARPA, Peter Zatko and his group is busily working on a
technical fix so that this kind of disclosure never happens
again. Many people think that that cannot be done, that the
genie of the Internet is out of the bottle.
But it does seem to me that we should be very careful in
conclusion in not developing a bill of attainder mind-set, if I
may use that metaphor. If it is okay for Obama administration
officials to conspire or collude with Bob Woodward, to use a
non-normative intonation of those words, and leak cables and
all kinds of secret information and do it with impunity with a
reporter who then puts it in a book, it does seem that we are
on our way not for developing equal protection policy but for
the kind of discriminating policy that will make our legal
system not reliable and subject to the distortions of repeated
judicial decisions.
Mr. Coble. Mr. Chairman, I think----
Mr. Nader. I will leave you with that, Mr. Chairman. Thank
you very much.
Mr. Coble. Well, okay, a moot point.
Mr. Conyers. Thank you, Ralph Nader; and my deep gratitude
to all seven of you. This may, in some ways, be one of the
finest discussions the Committee has had in the 111th Congress.
I am going to take my time, instead of directing specific
questions, to ask all of you or any of you, now that you have
heard each other, that you may have a reflection or while you
have been here in the hearing you thought of something you
might like to add to your statement already, to have this
opportunity to do so now.
Mr. Lowell. Mr. Chairman, one thing I would like to respond
to briefly is the point that my colleague to the left made.
I understand that we are grappling to try to figure out
where the First Amendment applies and who is a journalist and
who isn't. And I know many have said WikiLeaks and Assange are
not because they, to use the phrase, dump data or they don't
perform the function of being selective.I think that is a
dangerous slope to be standing on, because it puts in the
editorial room individual prosecutors who will make the
decision as to who is a journalist and who isn't. And to
individual courts all over the place as to what deserves First
Amendment protection and what does not. And it doesn't
distinguish well between what WikiLeaks has done and when a
more traditional media outlet posts a document in toto on its
Web site. So it makes for, I believe, a difficulty. And I think
it is one that cannot be legislated. It has to be decided in
another fashion.
But I do want quickly to point out that it is easy to say
in American history the function of gathering information from
the government by whatever source and disseminating it through
the public is classic journalism.
Mr. Conyers. Yes, Mr. Wainstein.
Mr. Wainstein. Thank you, Mr. Chairman.
I appreciate Mr. Lowell's point, that whatever you ask
anybody, be it a court or a prosecutor, to try to distinguish
between one person who is a journalist and another person who
iisn't a journalist is a dangerous slope to be on. Two
responses to that.
One is, we are on that slope right now. That is what the
law allows as it stands; and Mr. Lowell made that point very
well, that the current law allows the government to prosecute
both the recipient of the information as well as the leaker of
the information.
The second point, though, is if you assume that there is
ever going to be a case where a reporter or a person in the
position of the news, the recipient of the information, can be
charged, then that line has to be drawn.
So go back to the Chicago Tribune cause, which is sort of
the classic. 1942, the Tribune actually reports that we have
broken Japanese code. If the Japanese had paid attention to it,
millions of lives, including many of our parents, might have
been lost. They didn't fortunately, and they ended up not
prosecuting the case.
But I think many of us or most of us agree that that is a
case that is so egregious that that newspaper or that reporter
should or could be charged. If you assume that there is such a
case and somewhere a line has to be drawn, my point would be is
WikiLeaks, aside from whether you want to call them a newspaper
or a news organization or not, is their mission and their mode
of conduct sufficiently divergent from a traditional news
organization, the type that the First Amendment was designed to
protect, that it falls beyond that line? So that it could be
prosecuted without the First Amendment standing in the way of
its prosecution and without other news organizations living in
fear--the news organizations that pursue the traditional
purpose of news and pursue the traditional modes of conduct of
news gatherers and reporters--not live in fear that, because
WikiLeaks got prosecuted, they are going to be prosecuted and,
therefore, their actions wouldn't be chilled. That is the
argument.
While I agree with Mr. Lowell that any definitional
distinction is difficult and can be dangerous, it is where we
are right now; and I think WikiLeaks--an argument can be made
that WikiLeaks is exceptional enough a situation that a line
could be drawn without such damage to the First Amendment.
Mr. Schoenfeld. Mr. Chairman, I would also compare this
case to the Pentagon papers case where the Times spent a great
deal of effort redacting the documents before it published
them, which is not what is taking place here. This is a very
different kind of enterprise. And, of course, in that case,
that was a prior restraint case; and the Supreme Court ruled
that it was not--the standard had not been met for suppressing
that information.
It is also notable that five of the nine Justices said that
if the case came to them after publication, as a prosecution
they would strongly consider punishing the Times, prosecuting
the Times, upholding the conviction of the Times if the
information was of the character that was prescribed. So I
think that a prosecution of WikiLeaks, just judging by the very
scant law we have here, the Pentagon papers case, is a viable
possibility.
Mr. Conyers. Yes, Professor Stone.
Mr. Stone. Thank you, Mr. Chairman.
On the discussion about whether WikiLeaks is part of the
press or whatever, I think that is not a fruitless line of
inquiry. I agree with Mr. Lowell that drawing a line along
those directions is simply not going to be coherent.
But, also, in terms of summary of things, I want to come
back to how clear it is from this discussion that the starting
point is the classification system, that the bottom line is
there cannot be any coherent solution to these issues without
going back and examining the classification process and
standards. Unless we do refocus what has happened--because,
essentially, over the last 70, 80, 90 years, we have run amok
with secrecy; and that has created the problems that we have
seen here. It has denied the Congress access to critical
information, it has denied the courts access to critical
information, and it has denied American people access to
critical information. Unless and until we go back and fix that,
all of this is spinning wheels. I think that is really the
place where this Committee and where Congress has to start its
inquiry.
Mr. Conyers. Professor Blanton and then Ralph Nader.
Mr. Blanton. Mr. Chairman, I just wanted to, at my own
peril, try to correct Mr. Schoenfeld's analysis of what is
going on here. Because, in fact, a great deal of redaction is
going on here on a daily basis. We have extensive descriptions
of it in the editors' notes by all the media outlets who are
publishing stories on this matter, and they have testified to
the fact that WikiLeaks is following their lead after their
reporters engage in exactly that discussion with the government
about what the risk is, which is a discussion the Chicago
Tribune did not have in its case and was its own, I think,
journalistic failure, I would argue. So a great deal of
redaction is taking place.
And I would just point, also, to a certain trajectory; and
I suspect that Mr. Assange's lawyers have maybe read some of
Mr. Wainstein's testimony maybe in advance of this hearing,
because they are doing some very smart things to eliminate
exactly the distinctions that you are trying to draw. They are
asking the government for feedback on the documents. They are
taking care to follow the lead of the media. They are actually
doing the publication in concert with major media organizations
who have the capacity that they do not have to do reporting. In
fact, they are looking more and more like a media organization.
But I will even step back one from that. Because my reading
of the First Amendment as a layperson is that it also protects
speech--and this goes to Professor Stone's point--not only
freedom of the press but speech. And it seems to me that you
will run into really difficult problems not only on the media's
slippery slope but on speech. It may go to motivation. It may
go to this fact of overclassification.
I pointed out in my testimony in the written statement that
one of the most striking things about the Wiki cables that are
on the record is the fact that so many of the Confidential and
Secret ones shouldn't have been classified to begin with. So
you are going to be in a real mess, I think, in any kind of
prosecution.
I will leave it there.
Mr. Conyers. Schoenfeld, you are entitled to a brief
response.
Mr. Schoenfeld. Well, I found myself in agreement with many
things that Mr. Blanton said in his statement, but one thing I
strenuously disagreed with is the notion that WikiLeaks is
responsible in what it is done. It may have indeed redacted
some of the documents in the most recent disclosures, but we
have had the two previous dumps of large numbers of documents,
and I would say 2,000 cables referred to in my judgment is a
large number of documents. And these were documents that were
also about military operations, field reports.
And I remember congressmen have referred to Secretary
Gate's remarks, missing the damage that was done by the latest
disclosures. If one looks back at what his remarks were this
past summer, he said that the lives of American soldiers and of
Afghan civilians who have cooperated with our efforts there
were placed at risk. Chairman of the Joint Chiefs of Staff,
Admiral Mullen, has said that there is blood on the hands of
WikiLeaks. I think these views are entitled to a great deal of
respect. The notion that WikiLeaks is responsible seems to me
unsupportable.
Mr. Conyers. Ralph Nader?
Mr. Nader. I would like to submit, Mr. Chairman, with your
permission, for the record an article, a short article, in the
National Journal called, Breaking the Ranks. Ron Paul
vigorously defends WikiLeaks, where he asks his colleagues
which events cause more deaths, ``lying us into war or the
release of the WikiLeak papers.''
I would like to also introduce in the record Harvard Law
Professor Jack Goldsmith, who came out of the Bush
administration, Seven Thoughts on WikiLeaks, including the
description of top Obama administration officials' cooperation
with Bob Woodward releasing Top Secret programs, code names,
documents, meetings, and the like.
I would also like to include this full page ad in the New
York Times today by almost 100 Australians entitled WikiLeaks
are Not Terrorists. And it is a rather sober and poignant
appeal to Australia's ally, the United States, to cool it.
I would also like to include in the record the full article
in Forbes magazine on the forthcoming disclosures in the
hundreds of thousands of documents of corporate crimes,
corporate abuses, corporate coverups that Julian Assange has
assured Forbes would be forthcoming.
And just to reduce our ethnocentrism, Mr. Chairman, I would
like to note that WikiLeaks is not just a United States' issue,
that there are people in Peru, Kenya, Australia, Iceland,
Switzerland, and other countries who have benefited from
WikiLeaks' disclosures of rampant corruption and injustice in
those countries.
Mr. Conyers. Without objection, your several documents will
be accepted into the record.*
---------------------------------------------------------------------------
*The material referred to was not received by the Committee at the
time of the printing of this hearing.
---------------------------------------------------------------------------
We have a record vote, and so we will take a brief recess
and then resume the questioning of the Members. Thank you for
your patience.
[Recess.]
Mr. Conyers. The Committee will come to order. Before
yielding to Bob Goodlatte, I wanted to have just 2 minutes
further for any of you who wanted to add to the discussion we
were in mutually in terms of exchanging ideas and views on
comments made by other panelists.
Mr. Blanton. Mr. Chairman, I think we came to complete and
total consensus during that point.
Mr. Conyers. That is right. As my boy says to me, yeah,
right, dad.
Mr. Blanton. Yeah, right. Anybody want to weigh in? I am
looking at Ken, because we had the best argument during the
break.
Mr. Wainstein. That is right. But we kissed and made up. I
will jump in on just one point, which is everybody has talked
about the problem of overclassification. And I just wanted to
address that. I agree that is the problem. No question about
it. I actually applaud the President for his having undertaken
an effort to review the classification processes in place and
try to get more transparency and reduce the classification of
information.
I guess my point would be this, though. That is a problem.
And it is a problem in terms of the reality because it chokes
off the flow of information that should go out to the public,
information that truly isn't sensitive, but also it is a
problem of credibility, because the government has less
credibility when it says these are our secrets and only some
fraction of them really are. But keep in mind that is one
issue. And that doesn't completely solve this problem. So
while, yes, we need to address that, the question I think that
is out there now that has been posed by WikiLeaks is okay, now
what do we do about organizations out there whose sole purpose
is to try to get secrets? So I think of this like maybe a
football team. A defensive coach on a football team is trying
hard to--it doesn't defend well against the run. Well, you
don't just fix that just by going out and getting a good
defensive end, you also probably need a good middle linebacker.
So if you look at dealing with overclassification as your
defensive end, that is fine, that helps partly. But you are
also going to need a good linebacker to try to stop the run.
So my point is we also need to deal with--what do we do
with these organizations that are kind of new out there on the
scene like WikiLeaks that are doing their best to get our
secrets and put them out there?
Mr. Conyers. Nothing like a sports analogy when we are in
complex matters. I would like now to turn to our good friend
Bob Goodlatte, who is a senior Member of this Committee, and
serves with great distinction.
Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for
holding this hearing. I think this is a very important subject,
and this panel has been excellent in offering us a number of
perspectives about this. I don't know that we will get quite
the unity that Mr. Blanton claimed, but I nonetheless think
there is probably increasing agreement on what are the problems
and what are the limited solutions that we have. I would say,
first of all, that the lack of security safeguards for
protecting classified material is stunningly poor. And this
problem is enhanced by the use of modern technology that
spreads it around in places where I am sure many of the people
who want something kept secret don't even know who is
responsible for keeping the secret for them. And that is
clearly the case with one member of the U.S. Army having access
to, and apparently turning over, hundreds of thousands of
documents.
Secondly, I second those who have called for greater
openness. There are without a doubt many, many things that are
classified that should not be. And we have a problem I think
with out of control expansion of what are being deemed secrets
and for reasons that are not legitimate in terms of somebody
wanting to do a little CYA instead of actually really
protecting the national interests of the United States.
Finally, we want to make sure that we are not suppressing
information that should be made public. Nonetheless, it causes
great concern to me that any outside organization would be put
in the position of being the arbiter of what amongst hundreds
of thousands of documents should be deemed secret, and
therefore not put up on the Internet, and what should not. They
don't have the professional ability do that. They don't know
the far-reaching consequences that this will have on people's
lives or on the national interests of this country. Nor do I
get the impression that the leaders of this organization indeed
care about what are the national interests of the United
States. So we have to address this, first and foremost, by
figuring out how to safeguard the things that are truly secret
and release the things ourselves that we should be making
public, should be disclosing.
So, I guess first my question, I will go to Mr. Wainstein
first, but please anybody else join in, in terms of talking
about how we change the classification process, what can we in
the Congress do legislatively? It seems to me this is primarily
a function of the executive branch. But it very much concerns
me that the executive branch has abused this power. And we need
to change it. But without some standard, some measure of how
these things are classified, what would you recommend that the
Congress do to reassert our authority and get the
classification process brought under control?
Mr. Wainstein. I appreciate the question, sir. I guess as
you pointed out, the first thing to keep in mind is
classification is within the prerogative of the executive. So
the folks in the executive branch, the ones who decide what
should be classified and what shouldn't, and it all sort of
boils down to the executive's responsibility to protect
national security. That doesn't mean, however, that Congress
doesn't have a role. In fact, I think we were talking about
this on the break, I think if there is a silver lining to this
issue coming up now about WikiLeaks, it is that not only might
there be some salutary changes to the Espionage Act, and not
only does it, I think, heighten people's awareness of this
tension between security and openness, but it also I think
might heighten people's awareness of the fact that there really
is overclassification. And Congress I think can play an
important role in emphasizing how important it is to the
executive branch that overclassification be gotten under
control, especially if the executive branch wants some
legislation out of the Congress as it relates to the Espionage
Act, let's say.
The President, as I said, one of his first acts, I think it
was early on in the spring last year, was to set up this task
force and issue an Executive order covering overclassification.
So my sense is there is a sincere effort underway. Keep in
mind, however, that while there are, I think, the occasional--
--
Mr. Goodlatte. Let me interrupt you because I have got a
limited amount of time, and several people might want to
comment. But if you have specific ideas about things that
Congress ought do in this regard, we would welcome them. And I
would ask any other member of the panel.
Yes, Mr. Stone.
Mr. Stone. Yeah, I don't accept this notion that this is in
the executive branch's prerogative. It seems to me that the way
in which the classification----
Mr. Goodlatte. I agree that it is not, but I am looking for
practical ways to solve the problem. I don't want to argue the
point. If you have a suggestion for us to take legislatively,
or through appropriations, or whatever, that would help us to
reassert our authority in this area, we are interested. I would
bet that is on a bipartisan basis.
Mr. Stone. I would say for one that legislation that
provided, for instance, that no document or information may be
classified unless a judgment is made that the harm of
disclosure outweighs--that the harm of disclosure outweighs the
benefits of disclosure, as a statutory matter, that would then
say that no one could be punished for revealing information
that is misclassified under that standard would go a long way
to clarifying what the classification standards are.
Mr. Goodlatte. What if there seems to be some willfulness
and deliberate intention to misclassify information that should
be classified?
Mr. Stone. Make it a crime.
Mr. Goodlatte. Okay.
Mr. Lowell. Congressman, I have two practical things if you
consider any amendments to the bill.
Mr. Goodlatte. Yes, sir.
Mr. Lowell. First, I have already stated, which is to make
sure that we distinguish among the various offenses so that the
mishandling of properly classified information is included.
Therefore, there is a distinguishing between the various forms
of conduct. So Congress is basically telling the executive
branch you are not going to be able to prosecute people at the
same level for the various kinds of offenses. But the second is
to do what the case law often says, be clear that there can be
a defense given the intent of the potential criminal defendant
for raising the fact something was improperly classified in the
first instance.
Mr. Goodlatte. All right. Anyone else? Mr. Nader?
Mr. Nader. Just a couple of suggestions, Congressman. One
is years ago I would say the U.S. Government should declassify
anything it knows that the Soviets know so that you don't keep
it from the American people. And they knew a lot about what the
Soviets knew. But it gets to my point that one of the major
players in the whole classification issue is the Congress
itself. And when the Congress allows itself to be stratified
between the intelligence committees getting classified
information and no one else in Congress getting it, that is a
way the executive branch co-opts the congressional role and
increases the arbitrary classification discretion of the
executive branch. So that is something to look into.
And the second is that we should look back at what has been
disclosed that was classified to educate ourselves to be able
to more precisely respond to your question. Because there is
just so many things that have been declassified later or leaked
that were absurd to being classified. And that is a good
tutorial to develop the kind of nuance that your question
involves.
Mr. Goodlatte. Thank you. Mr. Blanton?
Mr. Blanton. Congress has an extraordinary track record in
pushing back against overclassification. The greatest success I
would say in the last 15 years has been the Nazi War Crimes Act
that pushed out millions of pages of documents that shouldn't
have been kept secret all of those years that showed how we had
hired and sheltered Nazis in our own country. Congress ordered
that, Congress built the interagency working group that ran it.
You should apply the same standards that were in that statute
to all historical records, anything more than 25 years old,
which under the Executive order is supposed to be treated
differently. Apply the Nazi process. Put an interagency working
group with some oomph behind it and congressional oversight
behind it to make it work. You could break loose that huge
backlog of those old secrets that is one of the hugest, biggest
credibility problems of the current system. You could make a
huge difference.
You could empower the Public Interest Declassification
Board, that has appointees from the executive and the
legislative branch, to not just make recommendations for
changing the system, but really even order the release. You
could provide new funding for the National Declassification
Center, which is out at the National Archives, just started in
May. Real good idea. They hired a career CIA employee to help
oversee it, but they are facing backlogs of 400 million pages
of stuff that should have been out 30 years ago. They can't
even begin to get their arms around it. A little oversight
there I think would really help.
And I think finally, to pick up on Ralph Nader's comment,
currently the executive branch treats requests for information
from Congress, only the Chairs of Committees are treated as
constitutional requests for information. If you are a Member,
not a Chair, your request for information is treated as if it
was a Freedom of Information request. So join the line that I
am in. All right? I am sorry, you have got a higher
constitutional duty than I do. And you ought to have the right,
all Members of Congress ought to be treated the way Chairs of
the Committees are treated today.
Mr. Goodlatte. Mr. Vladeck.
Mr. Vladeck. Just real quickly, I echo everything Mr.
Blanton just said. I would just point you to one more example
of Congress taking an active role in this area, which is the
Atomic Energy Act of 1954. So here we are not talking about
historical records, we are talking about I daresay what we
would all agree are some of our most important national
security secrets. And Congress did not leave it to the
Executive, Congress actually provided detailed statutory
procedures to be followed, and indeed to be punished in the
breach.
Mr. Goodlatte. Thank you. These are all very good
suggestions.
One other point. The allegation has been made, and I again
don't know the truth of this, that WikiLeaks is an organization
that has not only released the information on the Internet, but
that has been engaged in the solicitation, the facilitation,
maybe even the payment of--I don't know--pay for information or
pay to facilitate the acquisition of the information. But do
any of you have any thoughts on whether there is a need to
change the law in this area, or is there adequate law right now
against what most people would agree would cross the line
between reporting and espionage?
Mr. Nader. First of all, there is a lot more we need to
know, Congressman----
Mr. Goodlatte. I agree with that.
Mr. Nader [continuing]. That we don't know. But for
example, obviously Amazon, Visa, MasterCard, with their denial
of service in recent weeks, of WikiLeaks, was pressured by the
U.S. Government. The U.S. Government did not say cut off the
New York Times or the Washington Post. And that is a tip of an
iceberg----
Mr. Goodlatte. I appreciate that that is an issue, Mr.
Nader, but it doesn't answer my question, which I have already
exceeded the time. Does anybody have any comments on the issue
of whether or not we need to strengthen our laws regarding the
kind of things that were done or alleged to have been done by
WikiLeaks to acquire this information or any other information
from the government? And I would contrast from what they
acquire from a corporation.
Mr. Wainstein. If I may, Mr. Goodlatte, Congressman
Goodlatte.
Mr. Goodlatte. Yes, Mr. Wainstein.
Mr. Wainstein. I don't know whether WikiLeaks did go about
trying to procure or pay for the information. But if there was
any complicity between WikiLeaks and the person who actually
pulled the information out of the government, then WikiLeaks
could be charged as an aider and abettor, or a conspirator of
the leaker. Then WikiLeaks would not enjoy whatever additional
First Amendment protections they have as a news organization.
Rather, they are charged as a conspirator or aider or abettor
of the person who was the leaker. That would be an easier case
to make because then they would be charged like the leaker and
like the four other leak defendants that have been charged by
the Obama administration under the Espionage Act in a way that
I think is much less problematic to people because they are not
going to be charged as a press organization, rather as someone
who is complicit with leaking.
Mr. Goodlatte. That is under current law, correct? Mr.
Vladeck.
Mr. Vladeck. I agree with that. All I would add is it may
not be as problematic. It would certainly be as unprecedented.
The Espionage Act has not previously been used to my knowledge
to prosecute someone on an inchoate theory of liability as an
aider, abettor, acoconspirator, et cetera. The text of the
statute may support it. I do think we would still wade into
some of the issues you heard us describe this morning about
applying this antiquated statute to this novel theory.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Conyers. Thank you very much, Mr. Goodlatte. We now
turn to the gentleman from Virginia, Chairman of the
Subcommittee on Crime, Bobby Scott.
Mr. Scott. Thank you, Mr. Chairman. And thank you for
calling this hearing. One of the problems in passing criminal
laws is there are a lot of challenges. If we pass a criminal
law, we expect it to be challenged on its constitutionality, so
it has to be consistent with precedent. And we have the
Pentagon Papers, which alerts us to the fact that anything we
do in this area is going to be problematic. Also, the law has
to be precise. It can't be subjective after the fact, well, in
this case I think it is bad enough to prosecute. The conduct to
be proscribed has to be precise.
I am inclined to think that what happened in the WikiLeaks
situation ought to be illegal, but I think we have a consensus
on the panel, if nothing else, that we ought to take our time
and get this thing done right. Let me just ask, I am going to
start a couple of issues and just ask everybody to kind of
respond to them, one of which my colleague from Virginia just
talked about, and that is should it matter whether you helped
to obtain the information or you got it slipped under the door,
you didn't have anything to do with it in terms of your
publication? And does it matter if you knew full well that it
was classified? And should it make a difference that it should
or should not have been classified?
And second, we have heard a lot about the intent to harm or
whether it actually harms. That is going to have a real problem
with practicality in criminal law. Because whether or not the
leak actually harmed, I mean if you did something to sabotage
the Iraqi war and we started that debate, there would be a lot
of people who would conclude that you did more good than harm,
although obviously if you lose that debate you have committed a
crime. And whether or not even though it did harm, you didn't
intend for it to harm. Should that be a defense? And the fact
that you redacted some of it but didn't redact all of it,
should that help you or not? And part of this is from a
practicality point of view, you have been arrested for
publishing the material and you get an opportunity to debate
the Iraqi war before a jury, and if you win the debate you are
not guilty? If you lose the debate you are guilty? If you are
lucky enough to be in one jurisdiction where they hate the
Iraqi war you are in good shape leaking the material. If you
get stuck in another jurisdiction you are in deep trouble. Same
crime, different jurisdictions.
From just a practicality point of view, can you talk about
some of these kind of issues? And I just yield the panel the
balance of my time.
Mr. Lowell. Congressman, let me give you quick answers to
four, and hopefully start the discussion back about the
experience about these cases. Theoretically, whether or not a
media organization or a third-party are protected either by
free speech or free press or petitioning the government changes
the dynamic when that organization is, as you or others have
said, or Mr. Goodlatte has said, complicit in the theft or the
leak on the front end. The problem, again, is the slope. Press
people cajole, encourage, flatter, talk to people in the
government all the time. They are actively engaged in trying to
find out that which the government does not want to disclose.
They are involved. They are not taking out a National Enquirer
check of a thousand dollars and paying for the information. We
think that is a clearer line, although under the First
Amendment I am not sure it is. But where do you draw the line
then when a journalist is doing her or his job very well and is
figuring out ways to cajole somebody to say that which they are
trying not to?
So theoretically, I think yes, but I think practically no.
I think the issue of whether the media or the third-party or
the protected entity knows something is classified, well, the
present law doesn't make the disclosure of classified
information the crime. It makes disclosure of what is called
information relating to the national defense a crime. And we
are now seeing with classified overclassification that the fact
that it is classified may give a presumption that there is a
potential danger in its release. But it is the beginning of the
conversation not, and I don't think that is going to be a
meaningful distinction today. When you redraw this law someday,
it may be one, as again Congressman Goodlatte was saying, how
can you prevent overclassification by making sure there is a
defense, for example, that if something is improperly
classified? So therefore, knowledge that it is classified is
not really going to be dispositive.
The intent is very difficult. So you are right, there
shouldn't ever be a law that says whether or not the outcome
was what you intended; that is, I intended to submarine the
policy of Iraq, consequently I did what I did and it didn't
submarine the policy. Or in retrospect, it was better to do
than not do. It has to be at the front end. It has to be
intent. Was your intent to.
Now, that is, as you know, the same in every criminal case.
Trying to divine a defendant's intent by whatever their direct
statements or circumstantial evidence are is going to be the
challenge even in a classification kind of a case. So again,
somebody saying to the government, gee, should I redact?
Somebody who meets in public, somebody who does things overtly
as opposed to somebody who wears a disguise and is dealing in
drop boxes in the middle of the park. You can tell the
difference between what somebody's intent is by their behavior.
And finally, you raised a really excellent last point--they
were all excellent, but this one as a trial lawyer--when you
are divining somebody's intent and you are saying I felt like I
needed to expose the fact that there were no weapons of mass
destruction, that plays differently to a jury in Alexandria,
Virginia, than it might in Washington, D.C., than it might in
some other place in the country. And that is why, among other
reasons, at least the presumption is so many of these cases are
brought in the Eastern District of Virginia, or at least the
prosecutors believe they have a more sympathetic jury.
Mr. Vladeck. Could I just add briefly? Congressman, you
also raised the specter of putting the jury in the position of
deciding whether something was rightly classified or not. And I
think it is important to keep in mind that if Congress were to
add an improper classification defense into any revision of the
law, you are still putting an incredibly high burden on the
putative defendant who has taken quite a substantial risk if he
really thinks that at the end of the day his freedom, whether
he is going to go to jail for 25, 30 years, depends on his
ability to convince a jury that something was wrongly
classified. So I think, you know, that is not a legal argument,
but I do think that that puts a pretty heavy thumb on the scale
of why that would not open the door to massive leaks by
individuals who thought that things were wrongly classified.
Those are pretty severe consequences to take such a long shot
on.
Mr. Schoenfeld. Congressman, I would just add to what my
colleagues have said. A number of them have suggested we should
alter the law to have an intent to injure. And this was one of
your points. I think there is reason to believe that would open
the floodgates for leakers, that there are many salutary
reasons for leaking, but there could be considerable
disagreement about what actually is salutary. The current law,
which demands you have reason to believe it could injure the
United States, seems to capture behavior that we would really
like to keep from occurring, keep genuine secrets secret.
Mr. Scott. What burden of proof would you have if somebody
honestly believed that this was good for the country, although
some juries would conclude it is bad for the country? I mean do
you have to prove--would the prosecution have to prove beyond a
reasonable doubt that he did not believe that what he was doing
was the right thing?
Mr. Schoenfeld. I am not sure of the answer to that.
Mr. Stone. I think it is important here again to
distinguish between----
Mr. Scott. So are we talking about a good faith exception
to leaking?
Mr. Stone. I think it is important to distinguish between
the leaker and the publisher. The leaker can be regulated
consistent with the First Amendment much more aggressively. And
there I think it is sufficient to say that knowing disclosure
of classified information that is properly classified is
punishable.
Mr. Lowell. Congressman, one more thing on your last point.
You know, the present statute and the glean by the courts as to
the intent requirement to show, as Mr. Schoenfeld pointed out,
that you had a belief that it could injure, whether that is
good enough, let me tell you why it is not good enough. What
does could injure mean? What if you believed there was a 1
percent chance that it could injure and a 99 percent chance
that it wouldn't? Where in that slope does somebody become a
felon subject to 20 years in jail? And that is difficult,
especially difficult in a First Amendment context.
Mr. Vladeck. Congressman, I think the short answer is you
don't write one statute, you write three, right, and that you
have one statute that is focused at espionage and spying, you
have one statute that is focused on leaking, because as my
colleague, Professor Stone, points out, you can impose higher
burdens, you can hold government employees to a higher
standard, and you have a third statute that deals with private
citizens with no intent to harm the national security of the
United States. Now, that statute I think is the incredibly
tricky one to write. But no matter how it is written, I think
having those categories separated out would be such a
substantial improvement. And recognizing that the burdens
should be different in those three cases would be such a
positive development as compared to the status quo, that really
I think, you know, almost anything would be beneficial.
Mr. Stone. There is great benefit in having a very rigorous
and narrow statute to punish the publication of the
information. Because that puts pressure on the government to
keep the secret in the first place. So they can't punish
WikiLeaks because they don't have the requisite intent or they
haven't caused the requisite harm. And if they know that and
they are serious about the secrecy, they will then take the
steps necessary to keep the information secret. In that
dynamic, I think it is very important not to make it too easy
for the government to try to prosecute the ultimate speaker.
Because if they can do that, then they will get lazy and sloppy
on the question of secrecy itself.
Mr. Conyers. Thank you very much, Bobby Scott, for that
interesting exchange. I turn now to the distinguished gentleman
from Iowa, Steve King.
Mr. King. Thank you, Mr. Chairman. I do thank the
witnesses. This is an outstanding lineup of witnesses here. And
I would direct my first question to Mr. Lowell. Caught my
attention in speaking about intent. And in this discussion that
we have had, this dialogue about intent, I would be curious as
to if you had separate intents and maybe three almost
simultaneous, identical acts by different entities with
different intents, are they still guilty of the same crime?
Mr. Lowell. To put flesh on the bones, Congressman King, in
my brief introductory remarks today I said the statute--I was
speaking about section 793 specifically--could apply, again,
first to the government employee who had the confidentiality
agreement and then said something or did something that she or
he should not have. And then you have the person he is doing it
to. It could be a foreign policy wonk, it could be somebody
else. And then you could have the reporter who, as I said,
overheard the conversation and published an article. And they
are all responsible for releasing the exact same information.
They may be releasing it in different ways. Ironically, the
last hearer is going to disclose it to the most amount of
people. The first person in the confidentiality agreement is
disclosing it to the least number of people. And yet it is
easier to prosecute the first, as Professor Stone and others
said it should be, than the last. So with intent let's take
that intent against the last three. As to the government
employee, he or she knows that based on the confidentiality
agreement, and whatever he or she does, that it is not supposed
to occur, and there is very few excuses to go outside of
channels to do it. If you protect whistleblowers, then putting
that aside, the intent requirement is easier to prove.
To the person who is not in the confidentiality agreement
and is actively engaged in the exchange, as were the defendants
in the so-called AIPAC case, that was very problematic. Because
on Monday, White House officials or State Department officials
brought them in to discuss foreign policy that they wanted them
to know, and then 3 days later somebody at a different level
called them on the phone and talked about the same policy that
was the subject of their indictment. Their intent, therefore,
could have been proved by showing that what was legal on Monday
should not be illegal on Wednesday.
And then finally, when you get to the point of the media,
that is where all the comments of the intent requirement,
depending on their complicity in the original leak, will make a
big difference.
So you can take the same act and have three different
standards of intent and still survive, I think, under a
constitutional scheme.
Mr. King. Mr. Wainstein, your comments on that?
Mr. Wainstein. Congressman King, I actually agree with the
idea of having sort of this tripartite approach Steve Vladeck
and Abbe have described. I think narrowing the provision for
each of these different categories is going to make a more
targeted piece of legislation.
Mr. King. Then let me take this to the injury to the United
States. What does that mean and how can that be proven?
Mr. Wainstein. That is also another sticking point in the
whole WikiLeaks situation. I think you have heard a little bit
of that here today. The question of, okay, how damaging was it?
Maybe back in the first tranche that came out about DOD, the
DOD documents about Afghanistan, there were informants' names,
et cetera, et cetera, troop movements and the like. A lot of
that stuff ended up getting taken out later on. It is obviously
a sliding scale. And when you are dealing with the First
Amendment, one of the justifications, especially if you are
looking to prosecute a news organization, an organization sort
of in the shoes of a news outlet, you have to look at whether
you are justifying the prosecution and the incursion on their
press activities in order to address real harm to the Nation.
And that is one of the big issues I am sure the Department is
looking at right now, going through all the things that have
been released through these WikiLeak disclosures and seeing
what sort of identifiable pieces of damaging information are in
there.
Mr. King. I don't know that I am clear on this, and I turn
to Mr. Schoenfeld. Do you believe the Espionage Act should
apply to a foreign defendant that is operating outside the
United States?
Mr. Schoenfeld. I think it could and should be applied. And
I think that what he has done, what WikiLeaks has done is to
certainly endanger, as a number of ranking officials have said,
endanger our forces and endanger allied forces, civilians in
Afghanistan and Iraq. The idea that the United States has no
recourse in the face of this seems to be unacceptable. And I
think looking at the law, that says whoever discloses.
Mr. King. And while you have the microphone, and for the
record again I would appreciate it if you could just summarize
those five points that you made in the closing part of your
opening statement.
Mr. Schoenfeld. If I might take the liberty of looking at
them. More attention to declassification. Attention to giving
legitimate whistleblowers viable avenues other than the media
to which they can turn. Reestablishing deterrence of leakers in
the government so that those who leak have reason to fear that
they will be prosecuted. Bringing down the weight of public
opinion against leakers certainly, and against those who
publish vital secrets, not just ordinary kind of secrets that
are the daily fare of our American journalism. And in some
extraordinary cases, prosecution of media outlets that publish
secrets which endanger the public.
The classic case that has been mentioned here is the
Chicago Tribune case. But there are other cases that have
approached that line in recent years. The Pentagon Papers case,
the documents that Daniel Ellsberg turned over to the New York
Times were historical in nature. There was not a single
document in that collection that was less than 3 years old.
Some of the material that has, say, been published by the New
York Times in the last years since 9/11 have been operational,
ongoing intelligence programs like the SWIFT monitoring
program. That seems to skirt the line. I ride the New York City
subways. And so do millions of others. And there are people out
there determined to bomb those. And this is a program designed
to stop those people that was compromised. I think the
seriousness of that, and I think the irresponsibility of
journalism in some cases has been extraordinary in this period.
Much, much different from the kinds of things that the Times
published in 1971.
Mr. King. Would you care to speculate on their motive for
releasing information that is viewed as classified?
Mr. Schoenfeld. There were two really substantial leaks in
that period. The first was the NSA warrantless wiretapping
program. And there the Times had an argument that this was a
violation of the FISA Act, and they wanted to bring it to a
public stage. I think there is a legitimate debate about that.
And they believe I think that they performed a public service.
When we come to the SWIFT program, they had been warned by
ranking officials, Democrats, Republicans, I think Lee
Hamilton, one of the cochairmen of the 9/11 Commission, not to
publish this material, and they went ahead. And I don't think
they have offered a very convincing justification for doing so.
One of the reporters, Eric Lichtblau, said that the story was
above all else, and this is a quote, an interesting yarn. Above
all else. Now, for stuff of such gravity, I think one can't
imagine a more trivial rationale.
Mr. King. That answer says selling newspapers. Gentlemen,
my clock went red a while back. But I appreciate all your
testimony, and I yield back.
Mr. Conyers. I am pleased to recognize the distinguished
gentlelady from Houston, Texas, a very active Member of the
Committee, Sheila Jackson Lee.
Ms. Jackson Lee. Mr. Chairman, let me thank you very much.
And I don't want to be presumptuous to suggest that this may be
the last hearing of this session, because I know that this
Committee works into the very long hours into the night or into
the session. But let me thank you very much for your astuteness
in recognizing the importance of this hearing for those of us
who are in a quandary, if you will. I sit on the Homeland
Security Committee and have spent many hours in classified
meetings in the crypt, if you will, listening to the array of
threats against this country, and frankly, around the world.
But I may also, or it comes to mind that if you become too
restrictive and you have a law that is ineffective in the
espionage law, you also impact what can be the modern day, if
you will, whistleblowers. And I know that there has been a
distinction made with the Pentagon Papers, sort of after the
fact reports, as opposed to these documents that are current
and in place.
So I would like you gentlemen to help me with the quandary
that I am in. To limit information limits the potential
effectiveness of government.
But on the other hand, I don't know whether or not we had a
hearing, Mr. Chairman, and I am sure we did, and my memory
fails me, but I remember distinctly a sitting Vice President
blowing the cover of an active duty CIA agent. And it was
interesting to hear the response in that instance. This
person's cover was blown, and that sitting Vice President just
thought that he was completely right, or either didn't admit it
or had someone else, unfortunately, be the fall guy for it.
But I think in the Judiciary Committee it is important to
really understand the law. There is some dispute. The WikiLeaks
owner, leader indicates that they did write the London
ambassador and sought to have certain information redacted and
no one responded. But there is a November 27 letter from the
State Department saying don't release anything.
Abbe, it is good to see you again. Help me with that.
Because there was an effort made. I understand the difficulty
of the espionage law is knowing that you are disclosing
classified information. Does it have any provision for someone
who tried to work with the appropriate persons? Because I guess
I see a difference of opinion. I tried to work with you, you
did not want to work with me. What is the culpability?
I am going to yield to you first. I just want to talk about
the law, and how does that relate to that specific action?
Mr. Lowell. Very good to see you, Congresswoman, again.
Let's distinguish where the law is and how it is applied versus
to what people are saying could be done to improve it. So where
the law is and where it applies, the elements that you are
addressing goes to the following issues: When somebody is
accused of violating 793 or 798 under the present Espionage
Act, if they are a government employee, we have discussed the
fact that they don't have the same back and forth ability to
show that they did not have a reason to believe that their
conduct would injure the United States or benefit an adversary
or a foreign country. So in the context that you are asking and
one that this Committee is addressing, which for example might
be the WikiLeaks case----
Ms. Jackson Lee. Outside of that sphere.
Mr. Lowell. Outside of that or the one you raised. So then
the question is the back and forth between Julian Assange to
date and the other newspapers and the government officials,
here is what I have, what would harm? what would you like
redacted? goes to something. What it goes to is when the
government prosecutes somebody in that position, that person--
the government has to prove beyond a reasonable doubt a certain
intent. The defendant in that situation will be able to raise
that kind of conduct to show that the intent was not one that
had in the mind a reason to believe to injure, but was quite
the opposite, that he was doing his best, recognizing what he
and others would say was his First Amendment duties to do what
was right and also showing his intent was a good one.
The problem is that this is subject to a prosecutor
deciding I am still going to charge and let a jury decide that
the intent was okay, whatever jury instructions a judge will
give, and as one of the other Members said, the differences
between trying that case in jurisdiction one versus
jurisdiction two on something that is just called intent. And I
hope that is responsive.
Ms. Jackson Lee. It is. And I would like Professor Stone to
take a stab at that. And Mr. Lowell, and I want to call him
Abbe, we worked in the past, mentioned the First Amendment
rights. Do you want to give me some sense of where that plays a
role?
Mr. Stone. Sure. Again, I think that the government's
ability to regulate the activities of its own employees who
have signed secrecy agreements is considerable and that that is
where the focus should be, on keeping that information secret
if it really needs to be kept secret. That once we move into
the realm of public discourse, then we should be extremely
careful. And the First Amendment demands that we be extremely
careful.
Mr. Schoenfeld a number of times has identified the Chicago
Tribune incident from World War II, where the Tribune published
information that revealed the fact that we were aware of a
Japanese secret code and we had been using that as way of
advancing our own war aims. And had that information been made
available to the Japanese, as it could have been given the fact
that it was published, that would have been in fact a situation
where there was a clear and imminent danger that posed a grave
harm to the United States. We would have lost a pivotal benefit
in fighting World War II. And that seems to me the paradigm
case for a situation where the knowing disclosure of that sort
of information can be subject to criminal prosecution.
But the key to that example is that it happens once a
century. Nothing in the WikiLeaks case comes close to that. And
it is important to say that is the situation where you can go
after publishers or disseminators of information who are not in
a special relationship to the government. And that almost never
happens. And when it does happen, it merits punishment. But
beyond that, we should be focusing our attention on the
situation of keeping information secret in the first place, in
house, in the government where secrecy is necessary.
Ms. Jackson Lee. I like that. Mr. Schoenfeld, you have a
different perspective, but I think both of us have I think the
same goal. As a Member of the Homeland Security Committee, I
don't fool around with potential terrorist threats and/or the
new climate we live in. But my quandary is if we freeze down on
WikiLeaks, we freeze down even on information that may help us
in the war against terror. And I think the professor makes a
very definitive point. I am embarrassed that the materials were
accessible. How do you respond to that idea?
Mr. Schoenfeld. I agree with Professor Stone that the
Chicago Tribune case really is of a different order problem,
that there would have been the kind of immediate and
irreparable harm that really does not flow from anything that
appears in the WikiLeaks documents. But that is not to say that
there is not significant harm from that release. I mean I agree
with you we are all better informed now than we were 2 weeks
ago before those documents appeared about what our government
does. There is no question there is a public benefit that flows
from that kind of leak. However, there is the damage done from
particular documents themselves which we have only really begun
to understand. There are so many different kinds of
ramifications from these documents.
But what also has happened is a single blow to the ability
of the U.S. Government to conduct its diplomacy in secret,
which is a critical task for keeping the peace. If our
diplomats or foreign diplomats can't speak candidly to American
government officials, we are not going to be well informed
about what is going on abroad.
Ms. Jackson Lee. My message then is first of all, I want
our diplomats to speak candidly, and I want our government to
come into the world with 21st century technology so that a
young military personnel, 23 years old, doesn't have the
ability to hack into it. They will handle his case, and I don't
think we are discussing that right now. But we do have a burden
and a responsibility. You are absolutely right. The candidness
I think is appropriate. I understand the pundits have indicated
that we look good, but we don't know what else is coming. We
look good because we were consistent in our cables to our basic
policy. That puts a smile on my face. But the point is that if
lives were put in jeopardy--and again I go back to a Vice
President that blew the cover of a CIA agent. You know, to me
that is a direct threat on some individual's life. If lives
have been put in jeopardy, we have a different, if you will
framework to operate under. But your message to me is that we
now have to get more sophisticated in how we do it.
I see my time. Can I just get the last three witnesses to
comment? And I think I missed Mr. Wainstein. But I am going to
go this way and then you, sir, if I could just--if you could
just quickly. The dilemma, there was an inquiry, and I think
Mr. Lowell made it clear that someone's intent is in play here.
Mr. Vladeck.
Mr. Vladeck. Congresswoman, I think that is right. The only
thing I would add, and you mentioned this at the beginning of
your questioning, is if we are going to focus on the person who
is doing the leaking, if we are focusing on the government
employee, as I think your colloquy with Professor Stone
suggested, the other piece of this is whistleblowing.
Ms. Jackson Lee. Right.
Mr. Vladeck. And whether and to what extent current
whistleblowing laws are adequate to provide opportunities to
government employees who have come across what they think is
wrongdoing to have remedies other than going to their local
newspaper. With that in mind, I think it is just worth noting
that I believe last Friday----
Ms. Jackson Lee. Right, the new appointed person.
Mr. Vladeck. S. 372. You know, I am not an expert on
Federal whistleblower laws, but I do think that recognizing
that that is part of this conversation, and that strengthening
Federal whistleblower laws, especially as they apply to the
intelligence community, could actually meaningfully advance
this conversation as well by reducing the number of occasions
where government employees will feel the need or the lack of
other remedies when they come across wrongly classified
information.
Ms. Jackson Lee. If you would, please. Thank you.
Mr. Blanton. Congresswoman, I think that is a very
important caveat to what Professor Stone was saying. That the
government has a lot more power to regulate the employee than
it does to regulate the media. And I would add
overclassification, as does Gabriel Schoenfeld, to that. If we
can't deal with the overclassification and we can't really
protect serious whistleblowing, then I think the government is
not on such solid ground on coming down hard on its own
employees and regulating them in that more severe way that
Professor Stone says is constitutionally valid.
Ms. Jackson Lee. Mr. Nader? Thank you. Welcome. Thank you
for your service to this Nation.
Mr. Nader. Thank you. I think the point you earlier made,
that the disclosures by WikiLeaks can actually enhance our
national security. The disclosures do damage. They do damage to
government violations, to war crimes, to torture, to the kind
of policies that inflame and expand the opposition to us by
people who never had any enmity to us. And we can all cite
Peter Goss and General Casey and others who basically pointed
that out, that our presence in these countries, if we are not
careful, provides fertile ground for more opposition and more
risks to our national security. So in that sense, these leaks
build up public opinion and congressional engagement to hold
the government's feet to the fire as a government under the
rule of law and under constitutional standards in its foreign
and military policy.
Ms. Jackson Lee. The Chairman has been very kind, if you
could just finish, and I will finish.
Mr. Wainstein. Thank you very much, Congresswoman. If I
could just associate myself with what Steve Vladeck said about
the whistleblower laws. They are a relatively new animal over
the last few decades, providing protections for people who see
something wrong within their agencies and want to disclose it.
And not only do we need to make sure we have sufficient laws to
protect whistleblowers and prevent retaliation, but also
procedures, user-friendly procedures in those agencies so that
if I am in an agency, I see something corrupt or wrong and I
want to raise it up, it is easy for me do so. I don't have to
worry about retaliation. That is important, because obviously
if you have the law and the procedures in place that make it
easy and seamless to do that, then there is no reason that
person needs to go to the press. So in addition to looking at
the laws, any oversight that looks at the agencies, especially
the intelligence community, to ensure that it is easy for
people to blow the whistle without fear I think would be
useful.
Ms. Jackson Lee. Thank you, Mr. Chairman. Just to you, Mr.
Chairman, this is a bipartisan hearing. And I just simply want
to say maybe as we go into the next session, in a bipartisan
way we can look at whistleblower, or as you well know, the No
Fear Act that needs to be--which has to do with protecting
government employees against whistleblower comments. And I hope
we will do that.
Thank you very much, Mr. Chairman. I yield back.
Mr. Conyers. The Chair recognizes the Ranking Member of the
Courts Subcommittee of this Committee, the gentleman from North
Carolina, Howard Coble.
Mr. Coble. Thank you, Mr. Chairman. Mr. Chairman, I want to
commend the panelists for their durability today. They have
hung tough with us. I appreciate that.
Mr. Wainstein, you mentioned the possibility of enacting a
provision to prohibit the disclosure of classified information
by government employees regardless of the damage to the
national security. What are the pros and cons accompanying such
a statute? And do we run the risk of inviting more
classification than currently exists in an effort to prevent
dissemination of, say, unsavory but not necessarily damaging
material?
Mr. Wainstein. That is a very good question, sir. And that
actually harks back to something that Abbe Lowell mentioned
about how back in 2000 there was--that statute was passed,
actually, and then the President Clinton vetoed it. And the
statute basically said if you are a government employee, you
sign that nondisclosure agreement and you disclose classified
information, something that says secret, then you are guilty.
The pro is that that is very clean. You don't have to show
damage, you don't have to get into this back and forth of
whether it was damaging to disclose secrets about the Iraq war
or good because the Iraq war needed to be examined more
closely. It is just clear. You have a responsibility as a
government employee to protect classified information. You
willingly and knowingly disclosed it, you are guilty. So that
is on the pro side.
The con side, of course, is that, as you pointed out, there
is so much information that is classified that it would be
chilling to many government employees when they are going to
talk to people that, gee, all it takes is one step over the
line, and I get into one iota of classified information and I
am guilty. You know, if I intentionally disclose that, I can't
talk about anything. And so one of the cons is that it will end
up that people will be scared to talk to the press, people will
be scared to talk to Congress because they are worried they are
going to trip over classified information. And you might have
people who will be prosecuted for information which though
classified, as you pointed out, really might not be all that
sensitive. It just might be either a matter of mistaken
overclassification or something which is embarrassing but not
really sensitive.
Mr. Coble. Thank you for that, sir.
Mr. Schoenfeld, is it your belief that the First Amendment
confers on journalists an absolute right to publish classified
information or government secrets?
Mr. Schoenfeld. No, it is not. And I think from what I have
heard on the panel, there is some agreement with me that under
some circumstances journalists can be prosecuted under the
espionage statutes. To hark back to the Chicago Tribune case,
we have a case where I think the espionage statutes would apply
if the story came out that cost the lives of tens of thousands
of U.S. servicemen and prolonged the war. And the Supreme Court
of course in the Pentagon Papers case, five of the nine
justices, as I had noted earlier, did suggest that if a case
came to them not as a prior restraint case, but after the fact
as an Espionage Act prosecution or a Section 798 prosecution,
they would strongly consider upholding a conviction if the
material at issue was material that Congress had indeed
proscribed under the statutes.
Mr. Coble. I got you. Thank you, sir.
Professor Stone, we touched on this but let me run it by
you again. Does WikiLeaks enjoy the same protections as
traditional journalism organizations, A? And in the Internet
age, how do we distinguish between traditional media and the
new media? And does the law contemplate such distinction?
Mr. Stone. I think realistically, it is impossible to do
that. The Supreme Court itself, in interpreting the First
Amendment, has always refused to define who the press is. And
in any event, the speech clause, as has been noted, is an
independent protection. So although that may be frustrating, I
think as a practical reality there is no way to distinguish
WikiLeaks from the New York Times or from a blogger. They are
all part of the freedom of speech that the First Amendment
protects. And that doesn't mean that the conduct that they
engaged in may not be treated differently depending upon what
they actually do. But I think in terms of the nature of the
institutions or individuals, as a practical matter that is not
going to be a sustainable line of inquiry.
Mr. Coble. Thank you. Thank you, gentlemen, for being with
us today.
I yield back, Mr. Chairman.
Mr. Conyers. Thank you, Mr. Coble. I now turn to Bill
Delahunt, the distinguished gentleman from Massachusetts.
Mr. Delahunt. Thank you, Mr. Chairman. And this has been a
very informative discussion. And we are talking about
legislation and, you know, the problems of drafting appropriate
language and the issues of intent, et cetera. But I still go
back to what I said initially. Until Congress, and particularly
Members of this Committee, address the issue of the
classification process, we are operating in the dark. We don't
understand the classification process. I wonder if anyone on
the panel really does in terms of the steps. Who classifies? I
heard some of you use the term ``improper classification.'' Who
makes that decision? I have heard the term ``authorized
leaks.'' What in the hell is an authorized leak? Is that a leak
that, you know, someone in the Administration can do but we
can't? What struck me again, when I chaired the Oversight
Committee in Foreign Affairs, was we would get material that
was redacted, page after page after page after page. All you
knew or all you saw was the number. And then of course the next
day you would read in the newspapers. But I guess that was a
good leak as opposed to a bad leak.
So I hope--and I would direct this to my colleague from
Iowa--I hope with the new Congress that Congress conducts a
series of hearings where it demands an explanation of the
process itself. Are we going to rely on a bureaucrat, you know,
at a lower level to do the redaction? Who does all this?
Help me with the mystery. Can anyone here? Maybe I see you,
Abbe, nodding your head. Give it a shot.
Mr. Lowell. I can't answer that question as a blanket
fashion across all agencies and all parts of the Department of
Defense and all places in the world. But I can answer it based
on the materials that I have seen on the cases I have
litigated. And you are raising a point. So in the AIPAC
lobbyist case, by the time we were done and getting ready for
trial there was no fewer than, I don't know, 4,000, 5,000
pieces of paper that were in a classification mode at one level
or another. There is an Executive Order which has criteria for
why something is classified, very specific categories of the
potential harm that the release of that document or information
could cause. Like every other thing you have been talking about
today, those aren't microscopic definitions in a mathematical
way. They are subjective to begin with. One, for example, talks
about interference with the Nation's foreign policy or foreign
relations--or relations with a foreign country. I mean, what
interfered?
Mr. Delahunt. What does that mean.
Mr. Lowell. Well, I mean, then the second question is who
gets to decide you ask?
Mr. Delahunt. That is the key.
Mr. Lowell. Well, in many agencies what you will find is
that it is not just the Secretary or the Deputy or the
Assistant Secretary or its equivalent, it is the lowest level
of person working on the subject at the end of every day.
Mr. Delahunt. But that is my concern, that is my concern. I
think that issue is the predicate for addressing the concerns
that you as a panel have addressed. You got to begin there. And
we really have to do a thorough review, because I can--I would
testify in the next Congress that as Chair of that Committee, I
saw material that was classified that was, it was absurd that
it was classified. It was just building up a backlog of
classified information that ought to be, that everyone in this
room today would concur ought to be in the public domain.
The concern that I have is not so much about WikiLeaks but
what we are not having access to in a democracy. And again, I
hope that in the future, it is addressed, whether it is in this
Committee or any Committee, maybe a Select Committee is
actually needed, and people coming in who actually do the
classification, not the secretary, not the head of the agency,
but to hear it.
Now, I had occasion working with Congressman Lungren where
we had concerns about information that was being disseminated
from the FBI. It was very revealing in terms of how it was
done. And I am not saying it was, the classification was done
in good faith. But it clearly did not, in my judgment, meet any
kind of standard in terms of classification. That has got to be
reviewed. Mr. Blanton.
Mr. Blanton. Congressman, you have got a couple of great
assets at your disposal for the next session. There is a
terrific review board called the public interest
declassification board headed by Marty Faga former head of the
National Reconnaissance Office. Smart people are looking at
exactly these questions of how do you change it on the front
end so you don't--because every single classification decision
that a lowly bureaucrat makes generates a stream of cost to the
taxpayers and to the efficient flow of information that goes on
indefinitely until somebody like me asks for that document to
get released. That is a terrible way to do business. It should
be automatic after a certain sunset on every one of these
secrets.
You can call in those public interest declass board folks
so they can give you some expertise. There is a wonderful
little office called the Information Security Oversight Office.
Those are the folks that audit the secrecy system. They are
smart. The head of that office is the guy that coined the term
WikiMania that I have been using today in my statement. Call
them in and give them some more resources. I think they got 29
people to ride herd on this massive overclassified security
system. They need to know. But they can guide you through how
does the stamp get made.
And the last thing I would ask, Mr. Chairman, we have done
about four different postings that support the consensus on the
Committee of massive overclassification. Congressman Poe
commented on it, and agreed with Congressman Delahunt actually.
It seems that they actually agreed on this. This is actually a
piece of White House e-mail that is declassified in a process 1
week apart.
And the first time they cut out the middle, blacked it out,
and the second time they cut out the top and the bottom. You
slide them together and you got the whole thing. And the punch
line is it was the same reviewer, a senior reviewer with 25
years experience. I called him up and said what is up with
that? He said, oh, there must have been something in the paper
about Egypt that week, but Libya this week.
Mr. Delahunt. Exactly.
Mr. Blanton. We got about five or six Web postings of these
kind of graphic illustrations of the overclassification problem
that will help you get your arms around it, and I hope do
something about it.
Mr. Delahunt. Who authorizes the leaks, by the way?
Mr. Blanton. There is that famous quote from James Baker,
the former Secretary of State under President George H.W. Bush.
He said, you know, the ship of state is a very unusual ship, it
is the only one that leaks from the top. And I think Daniel
Schorr once commented when David Gergen was brought into the
Bush White House, well, you know, Jim Baker was too busy
leaking at the high level, they need somebody to leak at the
mid level.
Mr. Delahunt. Well, you know, what I find ironic, of
course, is the umbrage that some will take about some leaks,
but I guess it is not their leaks. There are good leaks and bad
leaks, I guess is the bottom line. Mr. Nader.
Mr. Nader. Congressman, part of this goes back to the
integrity of the civil servant and protecting it and letting
civil servants and people who work in the Armed Forces and the
executive branch take their conscience to work. And if you look
at the civil service oath of office, it is not to the cabinet
secretary, it is not to the President, it is to the highest
moral standards. And a lot of this idiocy and
overclassification comes from the lack of internal self-
confidence that they will have some reasonable protection by
civil servants who would say this is foolish to do this.
I will just give you one example. Forty years ago, one
agency of the government wanted to get from the U.S. Navy the
amount of water pollution coming out of naval bases. And the
Navy denied the then-agency dealing with water pollution, they
denied the disclosure of the volume of sewage going into the
ocean on the grounds that the Chinese and the Soviets could use
that information in order to determine how many sailors were on
the base. That is a level of foolishness that could have been
nipped in the bud if we supported our civil servants and
basically recognized that this is, overall, a struggle between
individual conscience of people up against the organizational
machines that we call bureaucracy.
And we always should bring back the civil service oath of
office, very short, very compelling, they all have to take it.
We should protect them in making sure that it can be
implemented in their daily work.
Mr. Conyers. Thank you very much. Your additional time was
granted at the leave of Steve King of Iowa. We now turn to the
distinguished gentleman from Arizona, Trent Franks.
Mr. Franks. Well, thank you, Mr. Chairman. I appreciate it.
I appreciate all of you folks being here. A challenging subject
this morning. I think it is obvious to me, perhaps to all of
us, that no human being, regardless of their education or
training, is really competent to opine or to know the full
extent of the actual damage that a leak like WikiLeaks could
cause. I mean, I guess you could put a team of experts together
to try to assess the future and the potential undetermined
damage, and I just think that it would be completely a hopeless
endeavor.
So I am convinced, obviously, that Julian Assange cannot
possibly be able to project what the potential damage of what
he did is all about. That is a significant point. But in light
of that obvious truth, I am wondering if it is time perhaps for
us to rewrite our statutes to establish some sort of lower
burden for the prosecutor when it comes to proving the
likelihood that a leak could cause actual damage and the
necessary level of intent under the statute itself.
Mr. Schoenfeld, you mention in your testimony that the ill
effects of information leaks can sometimes take years to
manifest. And you mention Pearl Harbor and the book, The
American Black Chamber as an example, which I think is a
brilliant example, where the book had disclosed certain things
that perhaps could have prevented Pearl Harbor. And I am going
to try get you to expand on that a little bit.
And that our government, I understand, actually considered
prosecuting the author of that book but felt like the
prosecution and the public nature of it might enlighten Japan
even more than what the book did. So I am hoping that you can
describe what might have seemed to the outside observer to be
the unforeseen consequences of the leaks through the book, and
if hypothetically, the author of The American Black Chamber
were to be tried criminally for disclosing intelligence
information today what level of mens rea do you think a
prosecutor would be able to show in this case? And I mean, I
guess purposeful or malicious intent to aiding the bombing of
Pearl Harbor would not be one of them. That probably would be
too little too strong. But what about perhaps just
recklessness? I know it is difficult to show malicious intent,
but yet, the devastation that was caused at Pearl Harbor, you
know, my last memory of that reading of the numbers on that war
is 50 million dead. It was kind of a big deal, the whole war.
And so in light of this, do you think that we should
reconsider the mens rea elements of our espionage statutes? And
I have given you a complicated question there. Tell us about
Black Chamber, tell us how it all fits and how you think that
we would approach that today.
Mr. Schoenfeld. Thank you very much, Congressman, for that
very interesting question. Herbert R. Yardley was probably
America's leading cryptographer in the 1920's. He was put out
of his job after Secretary of State Simpson said, gentlemen
don't read other gentlemen's male, fell on hard times in the
Depression and wrote a book called the American Black Chamber,
basically wrote it to make a pile of money. He laid bare on
that book the full history of American code-breaking efforts,
including our successes in the Washington Naval Conference of
1921 where we broke the Japanese diplomatic codes and were able
to outfox them in those negotiations.
When that book came out, it was treated much like Eric
Lichtblau regarded his own story in The Times as a kind of
interesting yarn. Highly entertaining was what an American
newspaper said about it. But in Japan it caused an absolute
furor about the laxity with which their own government had
treated their codes and ciphers. And it led the Japanese
government over the course of the 1930's to invest heavily in
additional code security, and they developed a purple machine
which was nearly unbreakable. And one of the consequences was
that it delayed the--it slowed down the pace at which we, our
resurrected code breaking effort, could read Japanese cables.
And we were somewhat behind when Pearl Harbor came along
and we missed crucial signals that Pearl Harbor was the
intended destination of the Japanese attack. Now, if Yardley
were to be prosecuted today, it would be not a hard case
because the intent provisions of section 798 which govern
communications intelligence are very clear. It is one of those
unusual provision in American law where the Act itself is the
crime without an intent provision, as far as I remember.
And so there might be a constitutional challenge, but the
statute itself does not have an intent requirement. As for
relaxing the intensity under the Espionage Act, I am overall
very cautious about changing this Act anyway. I think Congress
should move very slowly. Widening it has real costs; tightening
it has other costs, though I don't have an answer. But I think
hearings like this with attorneys, and I am not an attorney who
worked closely with the Act, is very much in order.
Mr. Franks. Thank you, Mr. Chairman, my time is up. But I
really want you to know I appreciate the response, and I hope
it kind of puts things in perspective here. Sometimes there is
no way to possibly anticipate what certain leaks can cause. And
in this case, it really caused Japan to completely rewrite,
reassess their codes and potentially could have prevented Pearl
Harbor. And in the 9/11 world that we live in, it is a relevant
consideration. And I thank you, Mr. Chairman.
Mr. Conyers. Thank you very much, Trent. But Professor
Stone wanted to get one comment in about your question.
Mr. Stone. Thank you, Mr. Chairman. I think it is very
important not to get fixated on this question of does the
speech cause some harm. One of the things the Supreme Court
figured out pretty quickly is that almost all speech causes
harm, it is not harmless. And so it made a terrible mistake
during World War I, which is that it took the position that
because criticism of the war would undermine the morale of the
American people, it might lead people to refuse to accept
induction into the military, that that speech could be punished
because it might have a harm. And what they figured out pretty
quickly after that is that was a disaster. That you can't
prohibit speech that criticizes an ongoing war because it might
have harm. Speech does have harm. And the Pentagon Papers case,
although the court said it was not likely in imminent grave
harm, even Justice Stewart conceded the speech was harmful,
certainly we were revealing all sorts of confidential
information about the past, that we had double-dealed with
respect to some of our allies, that we made alliances that
hadn't been publicly disclosed before, that made it more
difficult for us to negotiate in the future. If the standard
focuses on harm generally, then you have given up the First
Amendment.
Mr. Conyers. Well, thank you very much. And we thank Trent
Franks for raising this line of discussion. I turn now to my
good friend, the Chairman of the Court Subcommittee, Hank
Johnson of Georgia.
Mr. Johnson. Thank you, Mr. Chairman, for holding this very
important hearing. Thank you panelists for bearing through it.
Before I ask a few questions, I would like to respectfully
remind my colleagues that the WikiLeaks organization and Mr.
Julian Assange are publishers.
Now, if it can be shown that they, in some way, aided and
abetted in the perpetration or commission of a crime, or if
they were parties to a crime, then they could be subject to
prosecution. But the Justice Department has yet to come forward
with an indictment. And until and unless an indictment is
issued, then--and until there is a trial on an indictment, then
Mr. Assange is entitled to a presumption of innocence by law,
and his guilt would have to be proved by--there would have to
be proof beyond a reasonable doubt before that cloak of
innocence, that presumption of innocence could be removed from
it.
So first I would like to just settle this down and let us
look at this situation through that lens. We do have
constitutional rights, among which is a right to speak freely
and a right to publish First Amendment. And I would also like
to point out the fact that all of the documents that were made
available to WikiLeaks are not all classified. Some are
classified. There have been indications from Secretary Robert
Gates that these releases thus far have not significantly
harmed overall U.S. interests.
And a quote from Secretary Gates is as follows: The fact is
governments deal with the United States because it is in their
interest, not because they like us, not because they trust us
and not because they think we can keep secrets. And so while
there is a public furor about the release of the documents and
the information contained therein having been disclosed to the
public, we must not get carried away in a fervor as to what has
actually occurred.
Now, if these leaks, and I assume that they do undermine
national security and the ability of American diplomats to do
their jobs, and American personnel who actually engage in
compromising this classified information, should be prosecuted,
and should be prosecuted to the fullest extent of the law. But
unless those criminal allegations are proven, let's be careful
and let's insist on that presumption of innocence.
Now, The New York Times is also publishing this information
and we aren't shutting down their Web site or encouraging an
international manhunt for its editors. And we cannot allow
whatever outrage that we may have, whether or not it be
justified or not, to cloud our judgment about our fundamental
right to a freedom of the press.
Now, we have got to acknowledge that more than just the
publishing of this material, this is actually a failure of the
U.S. to protect its material. After all, it is a private first
class who is alleged to have had access to this treasure trove
of information and the ability to download it.
Primarily it is our fault that this information was
released, and we need to--and if there is a service, or if
there is a positive twist on what has occurred, it is that we
have been made aware of a softness in our protection of our
important information, and therefore we now, because of public
disclosure, we are now in a position to correct and make safer
and more fail-proof our information. So for that I would have
to thank Mr. Assange for that public service.
Now, we certainly should do a better job of protection
instead of embarking upon a crusade to harass and even
prosecute publishers of information. And I trust that our
Justice Department will look very carefully at this case and
the chilling effect that a prosecution that is unwarranted
could have on our ability to enjoy our First Amendment freedoms
in this country.
The Administration has directed Federal agencies to
prohibit their employees from accessing WikiLeaks documents on
their work computers. It has also been reported that a State
Department employee and alumnus of Columbia University School
of International and Public Affairs has warned school officials
that students interested in a diplomatic career should not
access the documents, even from their home computers.
If I may ask Mr. Blanton and Mr. Nader, what are your
thoughts about this, and censorship-free Internet access has
been a priority for us as we have dealt with other countries,
particularly China. And we encourage them to open up to have
free Internet or freedom of Internet access. And do you see
where our current stance could be--could place us in an
untenable position as far as just assuming a moral high ground
for making those kinds of arguments to those around the world
who don't enjoy the same freedom as we do? Mr. Blanton and then
Mr. Nader.
Mr. Blanton. Mr. Congressman, that wonderful example from
Columbia University, I think the best answer to that came from
a professor there named Gary Sick, who was a career Navy
officer and served on the National Security Council staff under
Presidents Ford, Carter and Reagan. Professor Sick stood up, I
think, in an open meeting at Columbia and said, if there is any
student of international affairs who is not reading the
WikiLeaks cables, then they should be thrown out of the
profession because this is essential information.
The Air Force is doing this. This is silly. The Air Force
is essentially restricting its own open source information
gathering. The Library of Congress is stopping the WikiLeaks
site. This is just silly. It is self-defeating, it is foolish,
I am sure it will end, it doesn't get us anywhere.
And there is the larger question you are going to, and I
think this is where the slippery slope that Mr. Schoenfeld was
talking about, he thought the Act should apply to foreigners.
Well, I have to say on our Web site, the National Security
Archive, we published the transcripts of Mao Tse-Tung's
meetings with Richard Nixon and Henry Kissinger.
That is top secret information in China. That would
certainly be subject to their Espionage Act. So they get a
right to come prosecute me on that basis? I am sorry, I don't
think so. I think we should look at limiting our own laws and
trying to move to a different kind of standard about what
transparency we can bring about in governments worldwide.
Mr. Nader. Well, I think those recommendations,
Congressman, were, first of all, futile, they can't enforce it,
chilling, and induces not the best type of conscientious civil
servant or foreign service officer that the student should
aspire to. The second point on China is very well put. I think
Hillary Clinton is not presently recalling her remarks when
she, in effect, if anything, lauded the hacksters in China for
breaking through Chinese government censorship on the Internet.
And as you implied, we can't lecture the world in one
direction and then start engaging in kind of a suppressive
activity in our country. Hillary Clinton would be a very good
witness before this Committee next year to explain not only
what she perceives as the freedom of Chinese hackers compared
to other hackers, but also how she has, in effect, done what
Secretary Gates has done, which is downplayed the importance in
terms of the damage and risk of the release of these State
Department cables. The more Gates and Clinton downplay this, it
seems the stronger case Julian Assange has for what he has
done.
Mr. Johnson. Let me ask if anybody sees any benefits that
has accrued from this unauthorized disclosure of documents, of
confidential documents, some of which are secret.
Mr. Schoenfeld. Congressman, I think there are
unquestionably benefits. But as Professor Stone mentioned a few
minutes ago, there is also always harm.
Mr. Johnson. And we have talked about the harm. I just want
to talk about the benefits.
Mr. Schoenfeld. No, I take the point. I think there is--you
know, it is hard to dispute that having access, having public
access to information that wasn't in the public domain and that
should have been is always a positive thing. But, you know, to
use the old aphorism, ``sunshine is the best disinfectant.''
You know, I don't think the question is whether there is a
benefit. I think that seems pretty clear.
Mr. Johnson. Anyone else?
Mr. Lowell. One quick thing is this is a benefit, this is a
clear benefit from these events, because it is allowing
Congress to sift through, again, a 100-year-old statute to
ensure that it is still working the way it should is against
all the other values that we have. So in that sense it has
sponsored this kind of public discourse, and we are the better
for it, I think.
Mr. Johnson. Well, we have some amongst us here in Congress
who feel that government is the problem, government is, as soon
as it starts putting its hand in things, then everything goes
haywire. So I don't know how we resolve that basic conflict,
although I guess those folks who would say that the government
gets in the way are confining their objections to a commercial
context and not a security context. But it is still ironic that
there would be those who would chip away, and really hack away
at our right to free speech, and a free press, while at the
same time, wanting to get government to get out of the
regulatory business with respect to commercial activities.
So with that, I will yield back. Thank you, Mr. Chairman.
Mr. Conyers. You are welcome, Chairman Johnson.
Mr. Johnson. And would note that not many are around to
listen to my comments.
Chairman Conyers. The Chair is now pleased to recognize
Judge Charles Gonzalez of Texas.
Mr. Gonzalez. Thank you very much, Mr. Chairman. And Mr.
Lowell, thank you very much for characterizing the hearing of
the United States Congress as something that is been official
that hasn't been the most popular statements in reference to
what we have been doing, but thank you.
The first question is, whatever we do here does have
implications for matters that are really the jurisdiction of
other Committees. But very important, and I think you all
recognize this, so I would want a yes or no from each of the
witnesses, because we are talking about the conduit, we are
talking about the recipient of the information that has been
provided them.
Would you agree--well, yes or no, is the Amazon cloud
server a recipient, is an Internet service provider a
recipient? And Dean Stone, just yes or no.
Mr. Stone. Yes, but it is unconstitutional.
Mr. Blanton. Yes, but what?
Mr. Stone. It is unconstitutional.
Mr. Blanton. What's unconstitutional?
Mr. Stone. It created its recipient for purposes of
criminal liability.
Mr. Gonzalez. But the conduit, the medium is a recipient.
Mr. Stone. Under literal definition I would say yes, but I
would say it is moot because it would be unconstitutional to
apply it that way.
Mr. Gonzalez. Mr. Lowell.
Mr. Lowell. Yes, they are a recipient. The statute will
apply once they redisclose. It is not a crime to receive, it is
a crime to retransmit, which they are doing by allowing people
onto their site. And like the professor, I think such an
application would be a gross overapplication and
unconstitutional.
Mr. Gonzalez. Mr. Wainstein.
Mr. Wainstein. Yes, Congressman, it would be recipient and
I guess it could fall within the statute, but it is very
unlikely anybody would ever want to prosecute it. And it would
have to await--while there is a provision that says if you
retain and did not tell or return the information to the
government, under some circumstances, an entity could be
prosecuted, it is very unlikely that such an entity would be
prosecuted, even if it, in turn, distributed beyond the
service.
Mr. Gonzalez. Mr. Schoenfeld.
Mr. Schoenfeld. Yes, it is a recipient. I agree with Mr.
Wainstein that it is very unlikely that any prosecutor would
ever tackle it. There are so many other more blatant leaks that
have not been prosecuted; that one seems really a stretch.
Mr. Gonzalez. Mr. Vladeck.
Mr. Vladeck. Yes, I just echo Mr. Wainstein's point, I
think the key is the retention provision of the Espionage Act.
I think the government would far more quickly prosecute for
retention than for publication. And I think that is where you
would see the constitutional problems that Mr. Lowell and
Professor Stone alluded to.
Mr. Gonzalez. Come on, Mr. Blanton, disagree.
Mr. Blanton. Yes, but should never be prosecuted, just
never.
Mr. Gonzalez. Mr. Nader.
Mr. Nader. No, it is a conduit contractor.
Mr. Gonzalez. See, I am with you, Mr. Nader. It has huge
implications, unbelievable implications. Because then I really
think you need to prosecute the person that provided the ink
for the newspaper, the person that provided the paper for the
newspaper. Why aren't we doing that? And you are saying it is
unlikely, but crazy things happen, crazy things happen when
people are scared, and there is fear out there.
So this question will go to Mr. Lowell, and let's see who
else, it is going to be Mr. Vladeck. You all have given us
certain suggestions, and I think they are excellent. And it all
comes down to what I think have been basic principles all
along, and that is intent. So let's say we tighten up how we
classify information, and we find this formula and we find the
arbiter, we have got the criteria, it is tightened down; it is
legitimately classified, and then someone violates their oath.
That is easy. I mean, that person is going to be persecuted,
and he should be--or prosecuted and persecuted likely. And that
happens. But now we go to that person that receives the
information. And you say that, Mr. Lowell, I think you had
introduced a clear and precise specific intent requirement--or
that is Mr. Vladeck. Mr. Lowell, carefully define espionage,
intent to injure the United States.
How do you define specific intent? You can't just say,
well, I saw it and anyone who knows that this is--could be
injurious to the legitimate interest of the United States, or
do you start having something at that point in time that you
should assume, a reasonable person should assume these things?
How do--is it just the traditional principles that we
always apply? Because I understand. I think you are on to
something that you still have to have the intent. But I never
had--I don't recall someone acknowledging that they intended to
do certain things when their whole defense is that they are not
culpable because they never had that intent. So we end up back
on the intent question.
Mr. Lowell. Well, either Congress will end up in the intent
or the courts will end up with the intent issue. And when both
of them do, they will look to various things that are, as you
pointed out, true in every criminal case to see what a person
accused intent by a person's statements, the context in which
they acted, and the circumstantial evidence. If a government
employee sees that their immediate boss is talking to the press
about a topic, that person may have a good faith belief of that
is okay to talk about even if it includes classified
information.
If a recipient is acting in the context of his or her job
as a lobbyist or as a member of the press, or even in a free
speech context, and hears something and retransmits it because
there is nothing that indicates that it is of any particular
damage and it is part of the person's job, it goes to that
person's intent. If the person sees that they are operating
overtly and not covertly, they are not stealing information,
they didn't pay for it, they didn't bribe anybody for it, then
there is evidence of their intent.
The issues of bad faith and good faith apply in almost
every criminal prosecution in a white-collar context. This is
no different, it will just be unique as to what will show the
good or bad faith.
Mr. Gonzalez. Mr. Vladeck.
Mr. Vladeck. I don't have anything to add. I think he is
exactly right. The only piece I might tack on at the end is
whether there would be circumstances where we would also want
to include recklessness, where we might allow for prosecution,
short of the showing of specific intent if we can show that the
defendant acted completely recklessly and without regard for
any of the safeguards that are built into the statute. But I
otherwise totally agree with Mr. Lowell.
Mr. Gonzalez. Mr. Chairman, thank you. I do have one last
observation, and that is when we all went to law school, we
remember in times of war, the law is silent, remember that? The
Constitution is not a suicide pact. The problem in today's
world is that wars are indefinite, wars are open-ended, wars
are not even declared. That is what really is probably one of
the greatest problems for us, is what is, I guess, the new
normal out here. Thank you very much, and I yield back.
Mr. Conyers. I want to thank you very much, Judge Gonzalez,
for your concluding the questions in this hearing. This hearing
has a certain poignancy because it may be our final hearing in
the 111th Congress. But we may be coming back next week, Bob,
so I can't be conclusive in ensuring you that this will be my
last hearing as Chair.
Mr. Goodlatte. Mr. Chairman, if you come back, I will come
back too. And if you will yield, I would like to say that while
it is indefinite exactly how much longer we will be able to
call you Mr. Chairman in the official capacity, you will always
be Mr. Chairman to all of us. You have done a great job as
Chairman of this Committee. You have been very fair to the
minority, so we look forward to reciprocating next year.
Mr. Conyers. Thank you so much. And I want to say to these
seven gentlemen that have been with us since early this
morning, this may be, in fact, for me personally, one of the
most important hearings that the Committee has undertaken. And
I am already talking with Mr. Goodlatte about the possibility
of subsequent hearings on this same subject in the 112th
Congress. And so we thank you as sincerely as all of us can and
declare these hearings adjourned.
[Whereupon, at 1:48 p.m., the Committee was adjourned.]
