S. Hrg. 111-834
THE ESPIONAGE STATUTES: A LOOK BACK AND A LOOK FORWARD
=======================================================================
HEARING
before the
SUBCOMMITTEE ON TERRORISM
AND HOMELAND SECURITY
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
MAY 12, 2010
__________
Serial No. J-111-91
__________
Printed for the use of the Committee on the Judiciary
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20402-0001
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
ARLEN SPECTER, Pennsylvania JON KYL, Arizona
CHARLES E. SCHUMER, New York LINDSEY GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland TOM COBURN, Oklahoma
SHELDON WHITEHOUSE, Rhode Island
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Matt Miner, Republican Chief Counsel
------
Subcommittee on Terrorism and Homeland Security
BENJAMIN L. CARDIN, Maryland, Chairman
HERB KOHL, Wisconsin JON KYL, Arizona
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York JEFF SESSIONS, Alabama
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
AL FRANKEN, Minnesota TOM COBURN, Oklahoma
EDWARD E. KAUFMAN, Delaware
Bill Van Horne, Democratic Chief Counsel
Stephen Higgins, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 1
prepared statement........................................... 35
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 2
prepared statement........................................... 39
WITNESSES
Smith, Jeffrey H., Partner, Arnold and Porter, Washington, DC.... 6
Vladeck, Stephen, I., Professor of Law, American University
Washington College of Law, Washington, DC...................... 3
Wainstein, Kenneth L., Partner, O'Melveny and Myers, Washington,
DC............................................................. 8
QUESTIONS AND ANSWERS
Responses of Jeffrey H. Smith to questions submitted by Senator
Cardin......................................................... 24
Responses of Stephen I. Vladeck to questions submitted by Senator
Cardin......................................................... 30
Responses of Kenneth L. Wainstein to questions submitted by
Senator Cardin................................................. 33
SUBMISSIONS FOR THE RECORD
Lowell, Abbe David, Attorney at Law, McDermott Will & Emery,
Washington, DC................................................. 43
Smith, Jeffrey H., Partner, Arnold and Porter, Washington, DC.... 48
Vladeck, Stephen, I., Professor of Law, American University
Washington College of Law, Washington, DC...................... 61
Wainstein, Kenneth L., Partner, O'Melveny and Myers, Washington,
DC............................................................. 75
THE ESPIONAGE STATUTES: A LOOK BACK AND A LOOK FORWARD
----------
WEDNESDAY, MAY 12, 2010
U.S. Senate,
Subcommittee on Terrorism and Homeland Security,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:03 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L.
Cardin, Chairman of the Subcommittee, presiding.
Present: Senators Cardin and Kyl.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Chairman Cardin. The Subcommittee will come to order. We
apologize for the late start. As you know, there were votes on
the floor of the Senate.
I am going to ask unanimous consent that my entire opening
statement be put in the record.
[The prepared statement of Chairman Cardin appears as a
submission for the record.]
Chairman Cardin. I also ask unanimous consent that a letter
we received from Abbe Lowell, an attorney and a person I have
known for a long time in regards to the challenges he faced in
representing defendants under espionage law, also be made part
of our record.
[The letter appears as a submission for the record.]
Chairman Cardin. Let me just start by saying that the
purpose of this hearing is to establish a record on the
espionage laws of our country. They were developed really in
1917 after World War I to deal with traditional spies who
desired to help our enemies. And as Senator Kyl and I were
talking about, if you look at the statute, you will see ``code
books,'' which I am sure people are wondering what that is
today.
It was that concern that motivated the Congress in that
time to pass laws to protect our country against our enemies,
and that statute has now been used to deal with Government
officials who leak information and private citizens who get
information and share it, but have no desire at all--in fact,
they think they are helping our country, not hurting our
country. The question is whether these laws are adequate the
way that they were drafted, and today we have three witnesses
who are really experts in this area.
The purpose is not to take immediate action on a specific
bill. It is certainly not an effort to try to deal with the
``shield law,'' which has already been acted upon by our
Committee. The purpose really is for us to get a better
understanding as to how the espionage law works today with
today's technology that was not in existence during World War
I, and whether we need to look at a different type of a statute
to protect our Nation against both spies and those who have
sensitive information and unlawfully disclose that information.
And I really do thank our three witnesses that are here to
share their expertise with the Committee.
With that, I would yield to Senator Kyl.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you very much, and, Mr. Chairman, thank
you for holding this hearing on a subject which is very
important and undoubtedly needs to be addressed now. We were
talking on the way over about the need probably to replace
terms like ``code books'' with ``electronic information'' and
things of that sort; ``national defense,'' maybe changing that
to ``national security,'' and things of that sort. And we
really appreciate the recommendations in the testimony. Mr.
Smith, I read your testimony last night, and you had a lot of
good ideas in there about that.
I also, though, want to focus on something else as well.
Let me ask unanimous consent to put my statement in the record.
Chairman Cardin. Without objection.
[The prepared statement of Senator Kyl appears as a
submission for the record.]
Senator Kyl. I will just raise the question. I will be
interested in the witnesses' basically addressing this issue.
We have significant whistleblower statutes on the books now to
enable people who have legitimate reasons for disclosing
classified information to be able to do so in a protected
environment. I do not have a lot of sympathy for people who
decide on their own to bypass those statutes, and knowing that
the release of information or leak of information to a
newspaper, let us say, that is published has the identical
effect as releasing that information to a foreign spy would
have for the purposes of the enemy, believing that it is OK and
then not being able to prosecute it. I would like to get your
reaction to that.
And with regard to the question of motive, as I recall, the
Israeli spy--I have forgotten his first name; Pollard was his
last name--had a very good motive. He did not want to hurt the
United States at all, but he did want to help his country of
Israel. He is serving life in prison because motive in that
case did not matter. It was the effect of the leak of the
secrets to another government that was the problem.
So everybody recognizes that leaks are a problem. Nobody
seems to have a good idea about how to stop it. And I did
appreciate, again, Mr. Smith, some of the ideas that you had in
your testimony. But I would like to delve into that a little
bit more during the hearing.
So, Mr. Chairman, thank you for, again, raising this very,
very important subject, and I think it will be beneficial for
our colleagues.
Chairman Cardin. Well, thank you, Senator Kyl. I just want
to underscore the points that you raised because I think this
is critical to trying to understand the espionage laws. I was
reading the material for today's hearing and was fascinated by
the court in the Rosen case adding a mental state requirement,
which I would be interested to see as we develop this hearing
as to how the statute has been basically interpreted by the
courts over the last 100 years, changing, I think, the original
intent of the statute to try to meet current circumstances. But
it may not serve all the circumstances that we have to deal
with, and you mentioned the whistleblower issues, and that is a
good point. Congress passed the whistleblower statute in order
to provide a mechanism where a person working for a sensitive
agency could come forward in a protected way. Well, if that
employee does not use that process, then are these statutes
adequate to deal with it? I think the points that you raise are
ones I hope that we will address through the three witnesses.
We have Stephen Vladeck, who is a Professor of Law at
American University School of Law. Professor Vladeck is a
nationally recognized expert on the role of the Federal courts
in the war on terrorism, and has authored numerous law review
articles on espionage statutes and terrorism-related issues. He
has also been part of the team of attorneys who have been
litigating important national security issues relating to the
use of military tribunals at Guantanamo Bay.
Jeffrey Smith is currently a partner in the D.C. office of
Arnold and Porter. He heads the firm's national and homeland
security practice. Mr. Smith previously served as General
Counsel of the Central Intelligence Agency and currently serves
on the CIA Director Leon Panetta's External Advisory Board. Mr.
Smith also serves as General Counsel to the Senate Armed
Services Committee, and prior to working in the Senate, he was
Assistant Legal Adviser in the State Department and as an Army
Judge Advocate General officer. As the head of Arnold and
Porter's National homeland security practice, Mr. Smith's
clients have included individuals and media organizations
involved in leak cases.
Finally, Kenneth Wainstein, who is also currently an
attorney in private practice and a partner in the D.C. office
of O'Melveny and Myers. Mr. Wainstein previously served as the
first Assistant Attorney General for National Security during
the Bush administration where he was responsible for the
supervision of espionage cases, and also formerly served as a
United States Attorney for the District of Columbia. Mr.
Wainstein also previously served as General Counsel and Chief
of Staff to the FBI Director Robert Mueller.
So we will start with Mr. Vladeck, and then we will work
our way through the witnesses. Thank you.
STATEMENT OF STEPHEN I. VLADECK, PROFESSOR OF LAW, AMERICAN
UNIVERSITY WASHINGTON COLLEGE OF LAW, WASHINGTON, DC
Mr. Vladeck. Thank you, Mr. Chairman and Senator Kyl. It is
an honor to testify before the Committee today on such an
important but neglected topic.
Mr. Chairman, you mentioned the importance of the Espionage
Act and its significance in our fight to avoid espionage and
the implications for our National security. And I think we can
all agree that this is an important goal that really cuts
across aisles, cuts across ideologies, et cetera.
But as significant as the Espionage Act is, and has been, I
think it is fair to say it is also marked by profound and
frustrating ambiguities and internal inconsistencies.
Attempting to distill clear principles from the state of the
Federal espionage laws in 1973, two Columbia Law School
professors--Hal Edgar and Benno Schmidt- -lamented that the
longer they looked, the less they saw. Instead, as they
observed, ``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 four decades since--and,
according to some, increasingly less benign.
My written testimony elaborates upon the statutory scheme
in a bit more detail. But for present purposes, suffice it to
say that, in my view, there are four significant problems with
the Espionage Act in its current form.
The first and most systematic defect to which, Mr. Chairman
and Senator Kyl, you both already alluded concerns its
ambiguous scope, by which I mean whether it applies to anything
beyond classic spying. Enacted to punish ``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,'' the plain text of the Act fails to
require a specific intent either to harm the national security
of the United States or to 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 nation.
As a result, the Act could be applied as currently written
to prosecute Government employees or private citizens in cases
bearing little resemblance to classic espionage. Such cases
could include situations in which a Government employee seeks
to reveal the details of an unlawful secret program, or to
bring to the attention of the relevant Inspector General or
oversight officer the existence of information that was
wrongfully classified; and cases in which a private citizen
comes into the possession of classified information with no
desire to harm our National security. In each of these
circumstances, an informed citizen would certainly have
``reason to believe'' that the relevant information, if
publicly disclosed, could cause injury to the national security
of the United States. That knowledge, though, need not--and
often will not--bear any relationship to the defendant's actual
motive. And I think we saw this in the Rosen case.
Indeed, in his ruling in the Rosen case, Judge Ellis
specifically said that the language of the statute leaves open
the possibility that defendants could be convicted for these
acts, despite some salutary motive, which Senator Kyl already
mentioned.
Now, I said there were four significant problems with the
Espionage Act. Let me briefly describe what I say as the other
three key defects, obviously, upon which I would be happy to
elaborate.
Related to the ambiguous scope of the Espionage Act is the
question of how, if at all, it applies to whistleblowers. For
example, the Federal 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 kept secret in the interest
of national defense or the conduct of foreign affairs.''
Similar language appears in most of the other Federal
whistleblower protection statutes.
To be sure, the Federal whistleblower statute, the
intelligence community whistleblower statute, and the military
whistleblower statute all authorize cleared Government
personnel in national security cases to receive information
from the putative whistleblower. And yet there is no specific
reference in any of these statutes to the Espionage Act or to
the very real possibility that those who receive the disclosed
information, even if they are ``entitled to receive it'' within
the meaning of the Espionage Act--and that itself is hardly
clear--might still fall within the ambit of Section 793(d),
which prohibits the willful retention of national defense
information. Superficially, one easy fix to the whistleblower
statutes might be amendments that made clear that the
individuals to whom disclosures are supposed to made under
these statutes are ``entitled to receive'' such information
under the Espionage Act. But Congress might also consider a
more general proviso exempting protected disclosures from the
Espionage Act altogether.
Another important and related ambiguity with the Espionage
Act is whether and to what extent it might apply to the press.
As with the whistleblower example I just described, a reporter
to whom a Government employee leaks classified information
could theoretically be prosecuted merely for retaining that
information and could almost certainly be prosecuted for
disclosing that information, including by publishing it. And
yet it seems clear from the legislative history surrounding the
original Espionage Act that Section 793(e) was never meant to
apply to the press; indeed, three other provisions of the
Espionage Act specifically prohibit publication of national
defense information, and another, broader limitation on the
retention of national security information by the press was
specifically scrapped by Congress in 1917, suggesting that the
Act is express in those few places where it specifically
targets news gathering.
Finally, the Espionage Act is also silent as to potential
defenses to prosecution. Most significantly, every court to
consider the issue has rejected the availability of an
``improper classification'' defense--a claim by the defendant
that the information he unlawfully disclosed was, in fact,
improperly classified. If true, of course, such a defense would
presumably render the underlying disclosure legal. It is
entirely understandable, of course, that the Espionage Act
nowhere refers to ``classification'' since the modern
classification regime post-dates the Act by over 30 years.
Nevertheless, given the well-documented concerns today over the
overclassification of sensitive governmental information, the
absence of such a defense--or, more generally, of any specific
reference to classification--is yet another reason why the
Espionage Act's potential sweep is so broad.
Now, although statutory ambiguity is hardly a vice in the
abstract, in the specific context of the Espionage Act, these
ambiguities have two distinct--and contradictory--effects.
Testifying before Congress in 1979, Anthony Lapham, then the
General Counsel of the CIA, put it this way: ``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 expression and debate by persons who must
be as unsure of their liabilities as I am unsure of their
obligations.''
And to whatever extent these problems have always been
present, recent developments lend additional urgency to today's
endeavor. In addition to the AIPAC case I mentioned earlier, a
report released just last week by the Heritage Foundation and
the National Association of Criminal Defense Lawyers
highlighted the growing concerns among courts and commentators
with the problems of vague and potentially overbroad criminal
statutes, even in modern criminal laws, let alone antiquated
laws like the Espionage Act. Indeed, just last month, the
Supreme Court in the crush- video decision reiterated its
concern with Congressional statutes that may chill
constitutionally protected speech. As Chief Justice Roberts
emphasized for an 8-1 majority, the Court ``would not uphold an
unconstitutional statute merely because the Government promised
to use it responsibly.''
Although it is not my place to make specific
recommendations to this Subcommittee with regard to how the
Espionage Act might be updated, it does seem clear that the
current state of the law is counterproductive regardless of the
specific policy goals one might seek to pursue. At the end of
his decision in the Rosen case, Judge Ellis specifically
suggested that the time was ripe for Congress to revisit the
issue, and, Mr. Chairman, I want to thank you and the Committee
for taking up his call.
Thank you.
[The prepared statement of Mr. Vladeck appears as a
submission for the record.]
Chairman Cardin. Thank you very much for your testimony.
Mr. Smith.
STATEMENT OF JEFFREY H. SMITH, PARTNER, ARNOLD AND PORTER,
WASHINGTON, DC
Mr. Smith. Mr. Chairman, Senator Kyl, it is a privilege to
be here this morning to address this very important subject.
It is often said that the first responsibility of our
Government is to provide for the security of our citizens, and
doing so means that some information must necessarily be kept
secret--from our adversaries and from public disclosure. And
the criminal law plays an important role in protecting that
information.
There is no real debate over whether real spies, the
Aldrich Ameses, the Robert Hanssens, the John Walkers, and the
Colonel Abels of this world should be prosecuted. However, more
difficult questions are presented as we seek to prosecute those
who leak properly classified information to the press. It is
these leak cases that present the hardest questions.
Before turning to the leak questions, let me make three
modest suggestions that I think could enhance the ability of
the Government to prosecute real spies. And Senator Kyl
graciously mentioned a couple of these, as did you, Mr.
Chairman.
First, the statutes have a long list of documents that
include things like signal book--I have no idea what a signal
book is and doubt that the Government still has such things. I
think one approach would be to replace it with the words
``information in whatever form.'' If that is too vague, perhaps
another approach would be to say ``electronic media'' or
``information in electronic form'' in the list.
Secondly, the statutes speak of ``information relating to
the national defense.'' I am concerned that language is too
narrow. It is true, as courts have, as Judge Ellis points out
in his August 2006 opinion, interpreted the term broadly to
include information dealing with military matters and more
generally with matters relating to the foreign policy and
intelligence capabilities. But I do think it should be replaced
with the term ``national security'' and adopting a definition
similar to that in the Executive order, that is to say, ``the
national defense or foreign relations.'' And I suggest this
because I have had some experience, particularly when I was at
the Department of State, where we had a prosecution where we
had, frankly, to strain to find documents that had been given
through a real spy to the North Vietnamese Government that
related to traditional diplomatic exchanges.
Third, I suggest the term ``foreign nation'' be changed to
``foreign power,'' similar to that used in FISA, because we are
dealing with al Qaeda and Taliban that are not foreign nations.
Let me turn to the issue of those who leak classified
information. Every administration in which I have served has
suffered from leaks that have been truly harmful. And every
administration has struggled to solve the problem, but none has
had much success.
The most recent legislative example was the Shelby
amendment in 2002--pardon me, initially 2000. It was vetoed by
President Clinton who said it would ``unnecessarily chill
legitimate activities that are the heart of a democracy.'' And
you will recall the Shelby language was limited only to
Government employees, not to the press.
But I think President Clinton's veto put his finger on an
important issue, and that is the fact that senior Government
officials often talk to the press on background, with
authorization, and provide information that is, in fact,
technically still classified. But they do so anonymously and
without taking the formal steps to declassify the information.
What often happens is the journalists then will call around,
and they will find out other information related to that part
that has been disclosed to them that the administration did not
want disclosed, but the person who gets the call from the
journalist does not know that the backgrounder has occurred,
and it can set in motion a tone that suggests to people that
the executive branch is not serious about protecting secrets. I
do not want to overstate this, but I do think the key to
preventing leaks is discipline from the top.
In other words, when an administration puts out sensitive
information, even in the controlled fashion, in a legitimate
effort to inform the public, they can hardly be surprised when,
having permitted the press to pull on the first thread, the
whole sweater unravels.
The matter came up again in 2002-2001, I beg your pardon.
Instead of enacting the Shelby amendment, the Congress directed
Mr. Ashcroft, then the Attorney General, to submit a report,
which he did in October 2002. I believe those recommendations
still stand admirably, and I urge the Committee to take a look
at those and to work with the administration to try to
implement some of those ideas which were designed to prevent
unauthorized disclosures.
Leaks are a real problem, Mr. Chairman, and I think we need
to address them. I have made a few specific suggestions, but I
do not think it is necessarily a good idea to open the statute
to try to make it easier to prosecute the press. I think that
has a lot of issues that just may not--the gain may not be
worth the candle.
I want to end by quoting one of my most admired law
professors. I was in law school when the Pentagon Papers case--
when it was learned that Daniel Ellsberg had admitted to being
the source to the New York Times. My professor, who had served
a long time in Government, said, ``I know what we should do; we
should give him a medal and then send him to prison.'' And that
captures, I think, the hard choices that need to be made, and
so I commend this Subcommittee for beginning to take a serious
look at those hard choices.
[The prepared statement of Mr. Smith appears as a
submission for the record.]
Chairman Cardin. Thank you very much for your testimony.
Mr. Wainstein.
STATEMENT OF KENNETH L. WAINSTEIN, PARTNER, O'MELVENY AND
MYERS, WASHINGTON, DC
Mr. Wainstein. Thank you, Mr. Chairman and Senator Kyl, for
inviting me to testify before you today along with my two co-
panelists, both men of tremendous expertise in the area of
counterespionage.
Since the attacks of September 11, 2001, I have spent much
of my professional career in the national security world, where
sensitive sources and methods are really the lifeblood of our
National security operations, and I have seen firsthand the
important role that sensitive information plays in our National
security operations and how those operations can be put in
jeopardy whenever that information is compromised. And,
unfortunately, the reality is that that information is
compromised all too frequently.
For purposes of today's discussion, I will focus on two
general types of unauthorized disclosures: first, where a
Government official passes sensitive information to a foreign
agent for money or for some traitorous reason, which is the
traditional espionage scenario; and, secondly, where a
Government official leaks secrets to the media, maybe out of
some base self-interest or maybe out of a genuine desire to
expose official wrongdoing and improve Government operations.
A key element of stopping both types of disclosures is
ensuring that in the appropriate cases we investigate and
prosecute those responsible. As you know, however, the
Department of Justice has brought a number of strong
traditional espionage cases over the years, but it has brought
relatively few prosecutions for leaks to the media. That thin
track record is not for lack of trying; rather, it is the
result of numerous obstacles that stand in the way of building
a prosecutable media leak case. Those obstacles include the
following:
First, as a touchstone matter, it is just downright
difficult to identify the leaker in most cases, given the large
universe of people who often are privy to the information that
was disclosed.
Secondly, there are limitations in the Department of
Justice's internal regulations, limitations that are in place
for all the right First Amendment reasons, but they limit the
ability to subpoena and get information from the one party who
is in the best position to identify the leaker--i.e., the
member of the media who received the leak from the Government
official.
And, third, even if you can get beyond that challenge and
the leaker is identified, the agency whose information is
compromised or was compromised by the leak is often reluctant
to proceed because of concern that prosecution is just going to
result in the disclosure of further sensitive information.
Then, finally, even if the Justice Department succeeds in
identifying the suspected leaker and indicting the case, it can
expect to face a very vigorous offense with a wide variety of
cutting edge legal challenges, the kind of litigation we saw in
the Rosen and Weissman case that ultimately was dismissed.
For all these reasons, leak cases--especially leak cases to
the media--are exceptionally challenging, and the question for
today is whether any of these obstacles can be addressed by
changes to the governing legislation.
While I do not see one sort of legislative silver bullet
that will overcome all these obstacles, I do see a few areas of
legislative initiative the Committee might want to consider.
First, for example, the Committee might examine whether
Government contractors are adequately covered by the espionage
statutes. These statutes were passed well before the influx of
contractors into the Government's most secret or sensitive
operations, and one of the critical statutes, 50 U.S.C. 783,
covers Government employees but does not extend to contractors.
Congress could consider putting Government contractors and
employees on the same footing in that provision.
Congress could also consider a number of amendments to the
Classified Information Procedures Act to ensure better
protection of classified and sensitive information in our
criminal trials. I have listed a number of ideas for such
amendments in my written statement, including several that
Senator Kyl has proposed. And with the current national
discussion about prosecuting more international terrorism cases
in our Article III courts, I think now is a good time to
consider amending CIPA to enhance our ability to protect
sensitive information in our criminal trials.
And then in a more general sense, I think Congress can use
this hearing and any ensuing hearings to encourage respect at a
fundamental level for our Nation's operational secrets.
Congress can send the message that it does not condone the
unauthorized release of classified information about our
National security operations. And it can point out that
whistleblowing is no longer a sufficient justification for
divulging intelligence community secrets to the public or to
the press now that the Intelligence Community Whistleblower
Protection Act provides a mechanism where a Government employee
who wishes to blow the whistle can actually take that
information, that sensitive information, in a protected way to
the Intelligence Committees up in Congress.
No matter where one stands on the political spectrum or in
the current debate about the various national security policy
issues of today, we should all recognize that the unchecked
leaking of sensitive information can cause grave harm to our
National security. Congress plays a very important role in
addressing that problem--whether by legislation, by oversight
or simply by exhortation--and I applaud the Committee for the
initiative it is showing with today's hearing.
I appreciate your including me in this important effort,
and I stand ready to answer any further questions you may have.
[The prepared statement of Mr. Wainstein appears as a
submission for the record.]
Chairman Cardin. Well, thank you, sir, and I thank all
three of you for your testimony.
Shortly, this Committee will start the confirmation process
of a new Justice to the Supreme Court, and I think there will
be consensus among all the members of this Committee that we
believe that Congress is the entity to make our laws. And when
we see the courts modify our statutes, it reflects either
action on the courts that we find inappropriate
philosophically, or a failure of Congress to deal with current
needs, that needs to be addressed. And I think in the espionage
world, it is the latter. Congress has not modernized the
statute, and we really need to deal with it.
A prosecutor needs to be apolitical. He must look at the
statute and say, ``Well, look, if the circumstances fit, it is
my responsibility to bring the action.'' So, therefore, Mr.
Smith, when you refer to whether a leak is authorized or
unauthorized, I am not sure I find that in the criminal statute
anywhere. So it does raise a question as to whether the
espionage statute in and of itself needs to be focused toward
those who are participating in traditional spy activities, and
whether the CIPA statute and others need to be strengthened in
order to deal with leaks, or whether we can handle both under
one statute or not.
Mr. Smith. The problem is that the term ``authorized
leaks'' has sort of crept into the lexicon because that is what
often happens, as we know. And my concern is that it also sets
a tone that somehow enables or empowers others to leak. If they
see that a very senior official is talking, then they are less
constrained not to talk.
In terms of handling it as a criminal matter, whether one
could make those kinds of distinctions and rewrite the statute
so that you focus on different types of disclosures that have
different purposes in mind, I do not know. But it certainly
undermines the effectiveness of the statute when this sort of
practice occurs. And what happens, of course, is that you
sometimes find an administration talking about A through D in a
particular subject, and they are perfectly happy to have that
out in the press and talked about because they think it is a
legitimate issue. But then when somebody else puts out F
through G on that same set of subjects, they get furious,
insist that it is a leak, and refer it to the Justice
Department for prosecution and investigation.
Now, you almost never find the leaker, but if you did, one
could imagine a very difficult set of circumstances that
prosecutors would face in trying to prove where the
administration had chosen to draw the line between things that
they were comfortable being talked about and things they were
uncomfortable being talked about.
So the question, I think, goes back to, as you alluded to
in your opening remarks, about who--as did Senator Kyl--who
decides what harm will result. That is principally a
governmental function, and it is a very difficult line to draw.
Chairman Cardin. Well, I think it just raises the issue of
whether we can deal with the espionage statute in isolation.
CIPA and the whistleblower and the other related statutes that
we have that are aimed at establishing practices that, when you
leak information, you are violating those practices.
Mr. Smith. I completely agree, Mr. Chairman. If I was not
clear, they are linked. There are a number of statutes that fit
together, and one ought to look at them comprehensively.
Chairman Cardin. Is there a difference here in regard to
those who sign a non-disclosure agreement with the Government
and those individuals who do not sign a non- disclosure? Does
that present a different hurdle in regard to current espionage
laws or related statutes? Anybody care to----
Mr. Vladeck. I will take a shot at it. You know, I think,
Mr. Chairman, it would depend, and I think that is part of the
problem with the Espionage Act, is the ambiguity in the
language. You know, various provisions refer to whether the
disclosure was authorized or not, whether the individual was
lawfully in possession of the information or not.
I do not actually think it is a legally dispositive
distinction, by which I mean I think you could prosecute an
individual under the Espionage Act as currently written,
whether they had signed a non-disclosure agreement or not. But
I do think that that creates yet another ambiguity. And I
suspect that the courts today would find, you know, perhaps
more trouble in that ambiguity in the context of a Government
employee who had not signed such an agreement; whereas, the one
who had signed an agreement might be held to have waived
whatever protections he might have had.
But I have to say, I think this actually highlights part of
the issue here, which is that the statute is written in such
general terms at a time before these kinds of agreements would
have even been contemplated by Congress, that if that is a
distinction that is worth pursuing, I do not think the current
text of the statute would support it.
Chairman Cardin. Well, one of the complexities here is the
statute applies to private citizens, it applies to Government
employees, it applies to Government contractors. So there is a
whole mix of individuals that this one statute applies to.
Mr. Vladeck. Well, if I may, I think Mr. Wainstein already
referred to the issue of contractors. The oddity is that
separate from Section 783, Section 793(f)(2) refers to
reporting to a superior officer that you have the information
and that you are potentially in possession of classified
information. That presupposes that you have a superior officer.
So even on the question of whether the statute applies to non-
governmental employees, I think the answer just depends on how
you cut it. And I think there are concerns with applying it so
broadly when the language seems to contemplate chains of
command that you might not see in the private workplace.
Chairman Cardin. Do any of you want to comment about the
challenges to a prosecutor under the Garrity case where, if the
information is required to be disclosed by your employer, it
can compromise the ability of a prosecutor to bring that case?
Is that something we need to deal with?
Mr. Wainstein. Yes, Mr. Chairman, I would be happy to
handle that. The concern you are alluding to is a very real
concern in criminal prosecutions across the board--whenever you
have a Government employee who gets interviewed as part of an
investigation into wrongdoing and is told as a condition of
your employment you have to submit to this interview, that
employee then gives a statement, and that statement then gets
factored into an ensuring criminal investigation and
prosecution. The problem is that statement was compelled by the
Government, and then that can infect the whole prosecution.
Because if you have a compelled statement that gets factored
into the investigation and the prosecution should not have been
using that statement or knowledgeable about the statement
because it was compelled against that person's rights, then it
can affect the whole prosecution and really undermine it.
There was the Blackwater case recently that has gotten a
lot of attention where the case got dismissed for fundamentally
that reason.
It is an issue in espionage cases, though I think the way
it typically plays out is there is a protocol in place where,
if an intelligence agency, let us say the CIA, thinks there has
been a leak, they make a referral to the Department of Justice,
and there are these 11 questions. It is a standard form, and
the agency whose information was leaked answers these
questions, sends them to the Department, and the Department of
Justice then decides whether or not to initiate a criminal
investigation. If a criminal investigation is initiated, then
typically the agency stands down on its administrative process
so as not to cause that problem.
So there is coordination that avoids that problem, but it
is not foolproof. Every now and then, for instance, if a
subject of an investigation is working in the agency and there
is a criminal investigation going on, that person might just
come up for his 5-year re-up on his background and have to go
in and be polygraphed. If he is being told, ``You have to be
polygraphed'' and is then questioned about ``have you ever
disclosed confidential information,'' and that person then
admits it, that compelled statement then gets into the
investigation and can taint the whole investigation.
It is an issue that we typically are able to work around in
espionage cases. I am not sure that it is something that
actually -for which there is a legislative fix that I can think
of, but it is one of the problems. I could not recite all the
obstacles to successful leak investigations, but it is one of
the ones we have to deal with.
Chairman Cardin. All right. Well, thank you. I appreciate
that answer.
Senator Kyl.
Senator Kyl. Thank you.
Let me just ask a question. I gather all three of you
probably know the answer to this. But in either a leak or an
espionage case, I gather that the classification under the law
of confidential, secret, and top secret, which--for example, I
will just read the middle one. Secret is applied to information
``the unauthorized disclosure of which reasonably could be
expected to cause serious damage to the national security.''
And there is a higher standard for top secret, a lower standard
for confidential.
Is the defense able to go behind that classification in
effect to say this information really could not reasonably be
expected to cause damage or serious damage.
Mr. Vladeck. Senator Kyl, actually I think the case law is
pretty clear that the defendant cannot raise that defense. I
think there is a Ninth Circuit decision from the 1970s called
United States v. Boyle that specifically deals with that
question, where it would sort of defeat a purpose to allow the
defendant to attack in court whether a document was properly
labeled.
Senator Kyl. Do the others of you agree? So then the
President, in effect, or his agents have determined that fact
by classifying the information at a certain level. Is that
correct? Do you all agree with that?
Mr. Smith. Yes.
Senator Kyl. Oaky. Then let me make this observation, and I
am just going to quote--I am just going to pick on one of you,
Mr. Smith, because you said it, I think, very well: ``Those who
become real spies should be prosecuted with the full might of
the Government. Those who, without authority, leak to the media
or others not authorized to have possession of classified
information should similarly be prosecuted.''
Now, that is what I want to get to here, that second
category. I think we all agree that as to the first category
the statutes can be modernized, cleaned up. That is something
that you could usefully help us do, but it is that second
category where we have some issues. And let me just posit two
general points here and then ask the three of you to get into
it. And in your testimony, each of you in some way or other
dealt with these problems. You have got the problem of the
official leak, and I think, Mr. Wainstein, you made this point
in your opening statement, that there can be a concern arise
among the people in the agency if they see a lot of official
leaks being done apparently with some kind of authority. What
does that do to the rule of law and their expectation of
deterrence? To me, it undermines it. It is not good. But there
is an easy solution to it. You either have someone authorize
the leak who is in the position of authorizing it. Presumably
that happened, if the excuse is this was an authorized leak of
classified information. Somebody had to make the decision that
it was OK in this for specific purposes to do it.
Well, you can either have that and/or you can declassify
the information just before the leak occurs so that there is no
question about it.
Both of those seem to me to be preferable solutions to not
prosecuting because somebody authorized it--or maybe somebody
did not authorize it, and it is hard to distinguish. Reaction?
Mr. Smith. Since I have spent a fair bit of time thinking
about this, Senator--and I think I raised it in my statement--
the concern--you have put your finger on it precisely. In an
ideal world, when--let us take a real case example. The
Secretary of State--there is an upcoming ministerial meeting.
The Secretary of State decides that the press should be
``backgrounded'' on what we are going to talk about. It happens
daily. The story in the newspaper the next day says,
``Officials close to the negotiations say'' da, da, da, da, da,
but they cannot disclose their names because they spoke on
condition of anonymity. That was probably decided at the
Secretary of State's morning meeting the day before, cleared
with the White House, and they backgrounded the press.
Somebody made a decision, however, as to where that line
would be drawn between what would be given to the press and
what would not be. They also felt that they did not want to
officially acknowledge that, let us say, the Deputy Secretary
of State spoke on the record about this. They like the
anonymity. It gives them flexibility. It gets out there----
Senator Kyl. Anonymity is Okay. No problem there.
Mr. Smith. But the problem is nobody then formally
declassifies that information so that the documents floating
around the Government with the talking points and so on are
still technically classified.
Senator Kyl. Do you think that is good policy? Or would it
not, in fact, be a rather simple and, in fact, important way to
solve this problem? Nobody should be leaking information. If
the Secretary of State decides that it is a good thing to do,
then I am all for it being done. But there should be a simple,
quick process by which it can be done, either--you say cleared
by the White House. Okay, so that no longer is classified
information, correct?
Mr. Smith. Right.
Senator Kyl. Or--and I do not know how you can do this. I
guess we would have to provide in law. It may still be
classified, but there is an exception for certain officials to
leak the information.
Mr. Smith. Well, I certainly would not be in favor of the
latter. I think that is unmanageable. But the former, where----
Senator Kyl. But that is what is being done today.
Mr. Smith. You are precisely correct, and nobody really
seeks to prosecute those cases because nobody refers them to
the Justice Department. What does get referred to the Justice
Department is people who then leak around the edges of that and
go further than the administration wanted.
Senator Kyl. Excuse me for interrupting, but because we do
not have a clear procedure, it gets to be a pretty gray area as
to whether you are--when you get the follow-up call from the
reporter, are you really adding to that and so on? We need to
make that line bright so that we do not get into the Valerie
Plame series of telephone call assumptions as played out a year
or so ago.
Mr. Smith. I think that is the solution. It may prove very
difficult to administer and to make it workable, because one
could imagine the Secretary of State not wishing to send around
a piece of paper that said, ``Well, I authorize the Deputy
Secretary of State to disclose this kind of information.'' But
in the absence of that, it does seem to me that you have these
other problems, and if we could have a system that acknowledged
that and somehow regularized it, I think it would be valuable
for a variety of reasons, including hopefully discouraging
others from leaking things that should not be leaked.
Senator Kyl. Yes, exactly. Thank you.
Just in the 20 seconds I have left, comments by the other
two panelists on that particular point? Then I will make my
second one later.
Mr. Wainstein. I am sympathetic to your point, Senator,
about the nebulousness of the authority issue, and, you know, I
think it is worth pursuing whether there is a brighter line
that would be in some ways more easily administrable and maybe
even fairer.
Mr. Vladeck. And just quickly, because I suspect we will
come back to this, I also think that this conversation
presupposes that we are all in the same place with regard to
the current regime for classification and that we are willing
to accept that the current regime for classification works
adequately both in ensuring that the right information is
classified and that the wrong information is not. And I guess,
Senator, I would just say that is not an assumption I am
necessarily comfortable making.
Senator Kyl. I appreciate that that is a different
question, though, and it is one that deserves examination. But
we have to start from a premise and--Okay, good. Thank you very
much.
Chairman Cardin. I want to follow up on Senator Kyl's point
because I agree with him, and I want to just go through a
couple scenarios. Some of it is personal because we get
sensitive and classified information that we read about in the
paper, and we are always puzzled as to how much we were
restricted.
But let us take that Secretary of State example and the
person who is responsible to give the information to the
communication person who is making it available on background,
mistakenly gives pages 1, 2, 3, when they are only supposed to
give pages 1 and 2. All the information is classified.
Where is the legal responsibility there? I guess I do not
understand authorized leaks from the point of view of the
criminal culpability under the statute. To me, if you
intentionally give our information that is sensitive, there is
vulnerability. I understand the court is interpreting this with
intent to harm our country, and this is certainly not with
intent to harm our country. But how do you draw this line if
you do not have in practice a procedure that Senator Kyl has
talked about where the information is no longer classified as
sensitive or classified?
Mr. Smith. Well, I would defer to Mr. Wainstein on the
issue of prosecutions because that is difficult. But it does--
you have put your finger on a critical question. I think that
in the absence of that kind of a system, I do not know where
the criminal culpability should be, but I have seen instances
in which a Secretary of State asked an Assistant Secretary of
State to background the press, the Assistant Secretary went
further than the Secretary wanted, thinking, however, that he
was carrying out what the Secretary directed him to do. The
Secretary got very, very angry and eventually wrote a letter to
the Assistant Secretary. That was a disciplinary action. And it
was a lack of clear communication about exactly what the
Secretary wanted disclosed.
Given the time pressure on these officials, it is hardly a
surprise that that happens, but this is a criminal statute
where clear lines--we need to make an effort to try to draw as
clear a line as possible.
Chairman Cardin. That is my point and I think Senator Kyl's
point. There needs to be a process here, because let me take it
then to someone who is not on the same page here. Someone--let
us take from the Congress of the United States--who has been
shared the same information in a classified setting and then
sees it released by background without name by the
administration. Is that Congressman then permitted to share
that information and comment on it? I think the answer is no,
but where do you draw the line? It seems to me that if you do
not have a process that has some transparency to it on the
information that is permitted to be released. It is a very
fuzzy situation, probably not too much documentation to back
this up, and if you get an aggressive prosecutor--who has
independence, remember. Our prosecutors do not have to wait for
an invitation to investigate. They can do that on their own.
Aren't we going down a path that could be extremely difficult
to administer?
Mr. Smith. It is extremely difficult to administer, and it
is often not fair. I have known Members of Congress of both
parties to complain that the administration will come up and
brief the Congress on some particular project or a program and
say this is top secret, you cannot talk about it, and then it
leaks that very afternoon. And it leaks in a way that the
Members of Congress disagree with because the administration
has decided to put out their version of things, and Congress
feels constrained from talking to the press and saying, well,
we disagree with that, we think it is bad policy. And they are
inhibited because of the classification that the administration
has put on it. It is not right. I have seen it done--this is
truly bipartisan. It is done by both parties in both
administrations, and it is not right. And it is certainly not
right then to sort of threaten prosecution to somebody,
particularly a Member of Congress, who chooses to say something
to the press that is counter to what the administration has put
out.
So greater transparency is critical. How one does that
realistically would be difficult. But you are both correct that
it is not right the way it is currently working.
Chairman Cardin. Well, I think the answer is what Senator
Kyl is suggesting. There has to be a transparent process for
declassifying that information if it is going to be made
available to the public. I mean, the Secretary of State is
going to have to say these two pages are just no longer
classified and they are available. Therefore, we all know that,
and we can comment on it. But to say that it is still
classified but the press gets it on background only, preventing
the open discussion of it by those who have knowledge of its
content is wrong.
Mr. Smith. There is a countervailing interest, which is the
hard part here, which is that it is important for senior
administration officials to put information in the public so
that the public will know what is going on and be talking about
it. They often do not want to do it in a way that specifically
ties officially the administration to that statement. I mean,
the FOIA litigation over the years has recognized that as a
viable distinction between something that leaks and later an
official acknowledgment of the leak, which then does declassify
it. So it has its useful part.
But what troubles, has always troubled me about it is that
there is--who is the decider here? Who gets to decide what is
classified and what is not? And I have seen administration
officials try to play it both ways, and then to use the
criminal law to try to enforce that seems to me deeply
troubling.
Chairman Cardin. I want to ask one more question, if I
might, and that is about the Whistleblower Protection Act, S.
372 in the 111th Congress. I think all three of you are
familiar with the operations of the CIA. The whistleblower
statute that we have provided--how does that work with the CIA
trying to carry out its mission? Is this the right way to
provide relief for employees who have concern? Or do you
believe it prevents the CIA from--or hampers the CIA in its
mission?
Mr. Smith. The answer is I do not know, Mr. Chairman. I
would be happy to think about that and get back to the
Committee. In my experience with the agency over the years, it
has not been a problem. But I think it is a question, and with
your permission, let me think about it a little bit and get
back to the Committee.
Chairman Cardin. I appreciate that.
[The information referred to appears as a submission for
the record.]
Mr. Wainstein. I'd like just sort of to talk about the
general notion of having a mechanism in place where members of
the intelligence community, employees of the intelligence
community who see something going wrong that they want to
disclose, that they can take it through classified, protected
channels and get it to the Intelligence Committees whose job it
is to practice oversight and to root out wrongdoing, root out
problems.
I think that is exactly the mechanism we need to perfect,
and I have not studied the new bill, but to the extent that
more work should be done to make sure that that process is in
place, it works well, there are user-friendly procedures in
place so that whistleblowers can get that information up to the
Intelligence Committees through the IG, the CIA IG, up to the
Intelligence Committees, and then not be retaliated against for
it, I am all in favor of it. And I think it is important
because the more we have a workable process in place for that,
then the less people can justify their unilateral leaks of
classified information on the grounds that they were trying to
blow the whistle. And a lot of leaks to the media are that, and
they are well intentioned at some level. But at the end of the
day, they are unilaterally disclosing sensitive information
that can cripple our operations.
Mr. Vladeck. If I may briefly, Mr. Chairman, I would just
add to that. I think relying on the whistleblower statutes
makes a lot of sense subject to two points. The first is that
presupposes that either the general counsel of the CIA or the
Intelligence Committees are in a position to act on this
information. And there has certainly at least been some
suggestions by commentators and critics that the law actually
does not necessarily allow especially the Intelligence
Committees to take necessary steps beyond that. I think that is
a difficult question.
Secondly, even if we all agree that that is the exact
process we want to be followed, the Espionage Act is silent as
to its interaction with the Whistleblower Protection Act. And
so at the very least, I suspect we might find common cause on
the notion that one could specifically amend the Espionage Act
to exclude protected disclosures under the various Federal
whistleblower statutes so that we do not have the concern of a
chilling effect that it might be unclear, even where the
whistleblower laws appear to apply, that these disclosures will
not subject the relevant individuals to prosecution.
Chairman Cardin. Thank you.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. This is a good
example of a hearing that could actually produce something
useful as opposed to much of what we do.
Let me get to----
Chairman Cardin. I think that is a compliment.
Senator Kyl. It is very much a compliment.
[Laughter.]
Senator Kyl. The second main thing that I wanted to get to,
we talked during my first questioning about the so-called
official leak, and I think we came to a conclusion that there
needs to be a brighter line and a better transparency so that
the official leak becomes the authorized official statement of
unclassified information somehow.
The second is the sort of good motive leak, either an
individual thinking ``I know better than the President what the
administration's policy ought to be, and I am going to leak
some information that undercuts his policy,'' knowing that it
is going to get out in the public--and it was Jonathan Pollard;
I remembered his name--or maybe even this AIPAC case. I only
know what I have read about it in the newspaper, but it seemed
to me that I recall one of the defenses, or at least
discussions in the media was that whatever information may or
may not have been exchanged there, it was not with an intention
of hurting the United States, and that was Pollard's defense.
But it seems to me that that is also dealt with fairly
easily by two things, but the statute maybe needs to be amended
to guarantee this. Mr. Vladeck, you got close to this, I think,
in one comment you made.
First of all, there are two things, it seems to me, that
easily respond to the mens rea requirement here. One is the
classification itself, if, in fact, the classification is a per
se determination of harm if the information gets out; and,
second, the mens rea here would consist of two other factors:
one, knowing that it is unauthorized and intentionally leaked
or put out. In other words, you did not mistakenly pick up the
wrong page--I think maybe, Mr. Smith, that was your example.
You were supposed to release page 2 and 3 and you mistakenly
released page 1 as well. You would have to know that what you
released was unauthorized; and, second, you would have to do
that intentionally. And the harm requirement would be satisfied
by the classification itself.
It seems to me that as to the person who is doing the
leaking, a statute that was clear in those respects would
satisfy everything that we need except for--and I am leaving
aside, at least for the moment, the publication by a media
corporation. In other words, we are not talking about here, at
least for the purpose of doing this in pieces right now,
prosecuting someone for publishing the information. Leave that
aside for a moment. I am just talking about the person who
leaks the information. Wouldn't that satisfy the statutory
requirements, and if we stated it that way, it would be much
clearer and much easier, therefore, to prosecute?
Mr. Smith. Let me take a first cut at that, Senator Kyl. If
this statute that you are discussing is focused on the
Government employee or the person who had authorized access to
the classified information, I agree with you, that is pretty
close to what the provision in Title 50 does.
I am uncomfortable with having it be a per se determination
that if the President classified it, that is sufficient. I
still think the Government should have some requirement to
prove that that, in fact, harm could reasonably be expected to
occur because I do not--I am a little suspicious of the
administration overclassifying things.
Senator Kyl. If I could interrupt you, though, I thought
you all three agreed that under the case law today, it is not a
defense that the information--in other words, the defense does
not go behind the classification to determine the reasonable
probability of harm.
Mr. Smith. You are correct. That is what the case law is.
But I am a little bit of an outlier on this.
Senator Kyl. So you are suggesting that standard may need
to be modified in some----
Mr. Smith. Yes.
Senator Kyl. Okay.
Mr. Smith. But the hard part is then when it is then given
to somebody else who does not have authorized access to it and
whether the statute that you have just outlined should be
applied to them. And, again, I think I am pretty comfortable
with it absent the----
Senator Kyl. Well, let me just argue with you there 1
second. First of all, you do not want judges who obviously do
not have the experience in dealing with classified data that
the executive branch that does the classification does. That
has been a criticism of giving judges this ultimate
determination.
Secondly, if the problem is that information is too easily
classified, the individual who is doing the leaking still
understands that his leak of that is unauthorized, whether he
disagrees with that proposition or not. And it seems to me
there are other ways that you deal with that other than just
deciding to ``take the law into your own hands.''
Mr. Smith. I completely agree with you. My only concern is
that I think there does need to be something more to put
somebody in jail than simply somebody put a classification
stamp on it. I am troubled with that mere fact.
Mr. Vladeck. If I may jump in, I would just add to that,
Senator Kyl. I also think it is worth noting that the case law
to which both Mr. Smith and I adverted largely pre-dates the
enactment of the Classified Information Procedures Act and
largely pre-dates the sort of belief--the creation of a body of
case law where Federal judges have, in fact, become expert to
degrees that we may disagree about, at least have some
experience in handling classified information in criminal
trials. And so it is possible that some of the concerns that
led to these decisions, at least initially, have been abated at
least somewhat by CIPA.
Senator Kyl. Mr. Wainstein.
Mr. Wainstein. You will recall that Attorney General
Ashcroft was asked to look at this issue, look at--I guess it
is called the Shelby bill, which essentially said what it is
that you are referring to, Senator, basically said that if you
are a Government employee--I think also former Government
employee--and you knowingly and intentionally leak classified
information, that you committed a crime.
I think the concern about overclassification is not case
specific; it is just sort of the broader concern that it puts
too much authority in the hands of the President to decide what
is classified and, therefore, what can be criminally--when
someone can be criminally sanctioned for disclosing it. And it
might give the Executive too much leeway to maybe classify
information that really is more embarrassing and less actually
a matter of national security. That is sort of the broader
issue.
And then, of course, there is the question of even if you
had a statute like this, would it really help increase the
number of prosecutions? In some ways, it would be easier
because, I mean, it means that the prosecution would not have
to prove up the harm, the potential harm, so you would not have
to go into, let us say, talking about how the information that
was disclosed was about some operation over in Europe that we
were doing and how that was--really that disclosure was harmful
because that operation would have given us the following
intelligence benefits. Whenever you have to do that in order to
make your case, you stand the risk of having to disclose more
information in discovery and in the actual presentation at
trial.
A statute like this would lower the burden, make it easier
to meet the burden, because all you have to show is it is
classified. And you would not have the same danger of releasing
more classified information. But I think that there are those
countervailing concerns about over-classification.
Senator Kyl. Do you mind if I just follow up? You say it
would lower the burden, but I am still confused. While the--is
it Boyd? What is the Ninth Circuit case?
Mr. Vladeck. I am sorry. I believe it is United States v.
Boyce?
Senator Kyl. Boyce. Well, that case may have pre-dated
CIPA. It is at least still acknowledged by the three of you as
probably the law in this situation until it is further refined.
So would what I am proposing really be a change from the law,
at least as it pertains to going behind the classification? In
other words, would it be setting up a higher standard?
Mr. Wainstein. It would not be setting up a higher
standard. The prosecutor would not have to prove the harm
element.
Senator Kyl. But does he have to prove that today beyond
the classification?
Mr. Wainstein. Yes, the classification helps, but you have
to put on additional evidence, typically, and that is what
happens. In fact, that is often one of the reasons why a case
like this might not be pursued because of the concern that you
have to disclose sensitive information in doing that.
Senator Kyl. So you have to do that--I am now a little
confused. Maybe you can see why.
Mr. Vladeck. Senator Kyl, if I may, and I hope this
alleviates the confusion. I think that the differences between
whether the information counts as national defense information
under the Espionage Act versus whether the mens rea that the
Supreme Court has read into the statute in the Goren decision
that the defendant knew that the information both was national
defense information and could harm--knew or had reason to
believe that the information, if disclosed, could harm the
national security of the United States. So it is not--knowing
that it is classified in and of itself may not be enough,
especially if any reasonable person would be hard pressed to
see how that information, if disclosed, could cause harm.
Senator Kyl. So, again, with your permission--and the two
of you agree with that reading?
Mr. Smith. Yes.
Mr. Wainstein. Yes.
Senator Kyl. So there is a requirement that the Government,
with some degree of burden, prove that the individual knew that
national security could be harmed above and beyond the fact
that he knew he was leaking classified information.
Mr. Vladeck. That is my understanding of the cases, and I
think just to go back to Chairman Cardin's point from before,
the Supreme Court, I think, has adopted that construction
largely to save what it thought would be constitutional
difficulties with the lack of such a requirement, at least in
1941.
Mr. Smith. And my experience with these cases is the fact
that it was classified is used as evidence to establish that it
relates to national security--pardon me, relates to national
defense and that its disclosure would cause harm. So it is--the
first thing that prosecutors do is say, Was this properly
classified and why?
Senator Kyl. Well, if I could then, just to summarize my
view on this, it seems to me, with that clarification--and I
really appreciate that--that with that further requirement, it
is hard to justify a good-motive leak when, in order to
prosecute such a case, you would have to establish that he knew
that he was potentially harming the national defense of the
United States.
Mr. Vladeck. Senator Kyl, this just goes back to a point I
made in my opening statement, and perhaps you and I just
disagree on this. I think there is a difference, though,
between knowing that the information you are disclosing may
potentially harm the United States and having that be the
motivation for why you are disclosing it. There might be good
faith separate from your knowledge. Perhaps you are not the
right person to make that calculation if you are the Government
employee, but I would resist the assumption that an employee
could never have good faith simply because he knows that the
information is classified.
Chairman Cardin. On that point, Senator Kyl, it seems to me
you are all saying, though, that, leaving the publication issue
aside, as Senator Kyl has suggested--we really do not want that
to be the focus of our work here today. But what you are saying
is that you do limit this to Government or former Government
employees like the so-called Shelby bill, that it should not
apply to private individuals. I am again talking about the
Rosen case, clearly one that is before us. Do you believe that
is a different standard?
Mr. Smith. In the case of the person who had--the laws and
the regulations speak in terms of people who had authorized
access. That is either Government employees, former Government
employees, or contractors. There I think the Government has
been able to prosecute these cases. I think the fact that it
was classified, that the individual knew it was classified, and
disclosed it without some kind of formal authority, that ought
to be prosecuted. In the case of the--the Rosen case, you will
recall that the man at the Department of Defense named Franklin
who gave them the information was prosecuted, and he is in jail
for a long time. That I think is proper.
I think what we are talking about is making it easier to
prosecute those cases by doing some of the things we are
talking about, perhaps working in some of the idea that if it
is properly--that if it is classified, that should be
sufficient, but the Government would still have to--I think we
are all, at least most of us are agreeing that simply the fact
that it has got a classification stamp on it should not be
sufficient to send somebody to jail for 25 years. I think you
need a little bit more than that.
The difficulty comes in when it gets into the hands of
somebody who did not have authorized access. If that person
then passes it to a foreign government intentionally knowing
that the foreign government is interested in it, then I think
that, too, should be a crime. If the person to whom it is
passed seeks to publish it, either in a newspaper or puts it on
Facebook or a blog someplace, then that gets a little bit
harder because presumably the person is putting it out there
because he or she believes that somehow it is important to talk
about. That still, in my mind, is a crime, but the motive and
the purpose gets a little bit more complicated there because
they may genuinely believe that it is a mistake that this
particular issue is not being discussed.
So perhaps we need to have a statute with different types
of action, different intents, and different punishments,
depending on the actor and the intent.
Mr. Vladeck. And if I may, I come at this from a slightly
different perspective, from the sort of academic long view. I
think the problem, Mr. Chairman, with going past the
individuals who are authorized to have the information is that
it becomes very difficult, as Mr. Smith says, to draw the line
once you get into the unauthorized access category. You said
you wanted to bracket the question on publication. I think that
makes sense. But I think that is the elephant in the room here,
which is that once we cross the line from those individuals who
are legally entitled to receive the information to those who
are not as a category, that question comes into the
conversation. And so----
Chairman Cardin. It certainly does, but we are really
trying to concentrate here on people who specifically are
giving information out to individuals more so than the news
media issue.
Mr. Vladeck. And I think that that goes to--I agree with
Mr. Smith's suggestion that we might think of--if I take it to
be a suggestion, that in those cases we might look at a more
rigid intent requirement as compared to the Government employee
or the contractor who should simply by virtue of his office
know and be required to hold onto this information. The private
person we might think about changing the standards because of
these concerns.
Chairman Cardin. Senator Kyl.
Senator Kyl. Well, Mr. Chairman, let me just say I have got
a lot of other questions. I also have a lot of other meetings
because we were so late here. This is an excellent panel. I
really hope that we can call upon you as we start to try to
formalize how we might want to respond to all of this for your
advice in helping us craft ideas for our colleagues perhaps. I
really appreciate all three of you informing the Committee. It
was a very helpful hearing, and I hope we can count on your
free advice in the future here.
Chairman Cardin. Well, let me just echo what Senator Kyl
has said. The purpose of this hearing was for us to gather
information, to get better informed, and to start a record in
this Committee as to the challenges we have. It clearly will
require us to look beyond just the espionage statute itself.
CIPA clearly is involved, the whistleblower statutes. It is
certainly an issue also concerning not just the passing on of
information but publishing. We understand that is an issue that
ultimately comes into the equation, but what we were looking at
is to try to set up the right formula for the types of
activities that compromise our National security. I think as
Mr. Smith said, changing the definition is one I think we all
would agree needs to be done.
This has been very, very helpful to us. The hearing record
will remain open for 1 week for additional questions and
statements, and I thank our three witnesses. We stand
adjourned.
[Whereupon, at 12:13 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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