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                                                        S. Hrg. 109-838




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION


                              JUNE 6, 2006


                          Serial No. J-109-81


         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S




Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    13
Grassley, Hon. Charles E., a U.S. Senator from the Stae of Iowa, 
  prepared statement.............................................   139
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   141
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1


Anderson, Kevin, Fabian and Clendenin, Salt Lake City, Utah......    18
Feldstein, Mark, Director of Journalism Program, and Associate 
  Professor of Media and Public Affairs, School of Media and 
  Public Affairs, George Washington University, Washington, D.C..    26
Friedrich, Matthew W., Chief of Staff and Principal Deputy 
  Assistant Attorney General, Criminal Division, Department of 
  Justice, Washington, D.C.......................................     3
Schoenfeld, Gabriel, Senior Editor, Commentary, New York, New 
  York...........................................................    23
Smolla, Rodney, Dean, University of Richmond School of Law, 
  Richmond, Virginia.............................................    21

                         QUESTIONS AND ANSWERS

Responses of Kevin Anderson to questions submitted by Senator 
  Specter........................................................    39
Responses of Mark Feldstein to questions submitted by Senator 
  Specter........................................................    45
Responses of Matthew Friedrich to questions submitted by Senators 
  Specter and Leahy..............................................    49
Responses of Gabriel Schoenfeld to questions submitted by Senator 
  Specter........................................................    68
Responses of Rodney Smolla to questions submitted by Senator 
  Specter........................................................    76

                       SUBMISSIONS FOR THE RECORD

Anderson, Kevin, Fabian and Clendenin, Salt Lake City, Utah, 
  statement and attachment.......................................    81
Associated Press, Mark Sherman, Washington, D.C., April 18, 2006, 
  article........................................................    90
Baltimore Sun:
    April 20, 2006, editorial....................................    92
    April 22, 2006, article......................................    93
CBS News, Washington, D.C., April 19, 2006, article..............    95
CBS Worldwide Inc., Washington, D.C., April 19, 2006, article....    97
Chicago Tribune, April 23, 2006, article.........................    99
CNN, Washington, D.C., April 20, 2006, transcript................   101
Editor & Publisher, New York, New York, article..................   106
Feldstein, Mark, Director of Journalism Program, and Associate 
  Professor of Media and Public Affairs, School of Media and 
  Public Affairs, George Washington University, Washington, D.C., 
  prepared statement.............................................   107
Frankel, Max, New York, New York, letter and attachment..........   116
Friedrich, Matthew W., Chief of Staff and Principal Deputy 
  Assistant Attorney General, Criminal Division, Department of 
  Justice, Washington, D.C., prepared statement..................   135
Guardian, April 21, 2006, article................................   140
Los Angeles Times, Nick Timiraos, April 19, 2006, article........   143
Miami Herald:
    April 24, 2006...............................................   144
    May 2, 2006..................................................   145
New York Times, April 19, 2006, article..........................   147
National Public Radio (NPR), Washington, D.C.:
    April 19, 2006, transcript...................................   149
    April 23, 2006, transcript...................................   151
Presstime, Arlington, Virginia, May 2006, article................   152
Red Bluff Daily News, April 22, 2006, editorial..................   158
Salt Lake Tribune, Salt Lake, Utah, article......................   159
San Francisco Chronicle, April 25, 2006, article.................   161
Schoenfeld, Gabriel, Senior Editor, Commentary, New York, New 
  York, statement and attachments................................   163
Seattle Post-Intelligencer, April 20, 2006, article..............   204
Smolla, Rodney, Dean, University of Richmond School of Law, 
  Richmond, Virginia, statement..................................   205
Star-Ledger, Newark, New Jersey, April, 22, 2006, article........   221
TPM Muckraker.com, April 19, 2006, article.......................   222
Times-Tribune, Scranton, Pennsylvania, April 20, 2006, article...   224
Wall Street Journal, April 19, 2006, article.....................   225
Washington Post:
    April 19, 2006, article......................................   226
    April 20, 2006, editorial....................................   227
    April 25, 2006, article......................................   228
    April 29, 2006, commentary...................................   229



                         TUESDAY, JUNE 6, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Grassley, Kyl, Leahy, and 

                   THE STATE OF PENNSYLVANIA

    Chairman Specter. It is 9:30, so the Judiciary Committee 
will proceed with this hearing on the subject of examining the 
efforts by the Department of Justice to control leaks by 
newspapers involving classified information.
    We know that leaks are a fact of life in Washington, D.C., 
and really virtually everywhere. There is an old adage that the 
ship of state leaks at the top, and we saw recently that it was 
true with the President of the United States making a 
disclosure. There are very important national security 
interests involved in maintaining the sanctity of classified 
information. At the same time, there is a tradition of 
ferreting out governmental wrongdoing--waste, corruption, 
inefficiency--by disclosures to the press, which function as 
the guardians of the public in many, many cases. Leaks are made 
for a variety of reasons, and while they have a very important 
social purpose, they also have the potential for harmful, 
deleterious effects on national security.
    This hearing will be looking into one aspect of expanding 
Executive authority, which we have seen in recent times with 
the warrantless national surveillance, with the signing 
statements where the President chooses which parts of 
legislation he likes and which parts he does not like, with the 
search and seizure on Capitol Hill, and a growing concern that 
the Congress of the United States has not exercised its 
constitutional responsibilities on oversight.
    There have been a series of activities which give cause for 
concern. In April of this year, a CIA employee was fired for 
allegedly disclosing the existence of secret CIA facilities in 
Eastern Europe. A Washington Post reporter conducted an expose 
based on that information and won a Pulitzer Prize. We have 
seen an investigation into the disclosure of the identity of 
CIA agent Valerie Plame, leading to the jailing of New York 
Times reporter Judith Miller for some 85 days.
    In response, Senator Lugar introduced legislation, which 
was modified by the Committee and introduced again, which would 
grant protection to newspaper reporters on a shield. The 
proposed legislation is very carefully crafted to provide an 
exception if national security is involved. But it has to be 
genuine national security. The Valerie Plame investigation 
started off with a national security purpose but shifted at one 
point to an investigation as to whether there had been perjury 
or obstruction of justice before a grand jury. And while those 
are serious charges, they do not rise to the level of a 
national security interest which would warrant incarcerating a 
reporter. That ought to be in our society the very, very last 
report. So the overtone of that statute will be in issue as 
    There has recently been the suggestion that newspapers and 
newspaper reporters can be prosecuted under a criminal statute 
which prohibits the disclosure of classified information. 
Highly doubtful in my mind that that was ever the intent of 
Congress, but those are the words which can be construed in a 
way to warrant such prosecution, different from another statute 
which provides for prosecution in the event that there is an 
assist to an enemy of the United States.
    In the famous Pentagon Papers case, United States v. New 
York Times, in a dictum Justice White said, concurred in by 
Justice Stewart, that the statute would not provide for 
injunctive relief to stop a newspaper from publishing material, 
but would provide the basis for a criminal prosecution against 
a newspaper.
    So these are very, very serious issues which we are looking 
at today, especially in the context of expanding Executive 
power in many, many directions.
    We have as our first witness today Matthew Friedrich, who 
is the Chief of Staff of the Criminal Division, Principal 
Deputy Assistant Attorney General. Mr. Friedrich received his 
law degree from the University of Texas, bachelor's from the 
University of Virginia. He clerked with Judge Royal Ferguson in 
the United States District Court for the Western District of 
Texas. In 1995, he joined the Tax Division of the Department of 
Justice. In 1998, he returned to Texas as an Assistant U.S. 
Attorney. In 2001, he became an Assistant U.S. Attorney in the 
Eastern District of Virginia, and now he holds the position, as 
noted, of Principal Deputy Assistant Attorney General.
    Thank you for coming in today, Mr. Friedrich. I would 
appreciate it if you would stand to take the oath. Do you 
solemnly swear that the testimony you will give before the 
Judiciary Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Mr. Friedrich. I do.
    Chairman Specter. Thank you. You may be seated, and we look 
forward to your testimony.


    Mr. Friedrich. Thank you, Mr. Chairman.
    Mr. Chairman and members of the Committee, thank you for 
the opportunity to discuss with you today the difficult issue 
of unauthorized disclosures of classified information, 
sometimes referred to as ``leaks.'' I intend to explain the 
position of the Department of Justice with respect to the scope 
of the relevant statutes as they relate to the press and the 
willful dissemination of classified information. In doing so, I 
cannot comment on any pending case or investigation.
    In response to a recent series of leaks of classified 
information, President Bush has stated that such leaks have 
damaged our National security, hurt our ability to pursue 
terrorists, and put our citizens at risk. Porter Goss, then-
Director of the Central Intelligence Agency, stated in February 
of this year that leaks have alerted our enemies to 
intelligence-collection technologies and operational tactics 
and ``cost America hundreds of millions of dollars'' to repair 
the damage caused by leaks. The WMD Commission made similar 
findings in its report. Members of Congress in both the Senate 
and the House have repeatedly acknowledged the damage caused by 
leaks, particularly in this post-September 11th environment.
    The Department of Justice is committed to investigating and 
prosecuting leaks of classified information, and Congress has 
given the Department the statutory tools to do so. Several 
statutes prohibit the unauthorized disclosure of certain 
categories of classified information, the broadest of which is 
Section 793 of Title 18, which prohibits the disclosure of 
information ``relating to national defense.'' Also, Section 798 
of Title 18 prohibits the unauthorized disclosure of 
information relating to communications intelligence activities.
    On May 21, 2006, Attorney General Gonzales was asked about 
the possibility of prosecuting members of the press for 
publishing classified information, and he stated, in part, as 
follows: ``There are some statutes on the books which, if you 
read the language carefully, would seem to indicate that that 
is a possibility.'' There has been considerable attention paid 
to the Attorney General's remarks. It is critical to note, 
however, that the Attorney General is not the first one to 
recognize the possibility that reporters are not immune from 
potential prosecution under these statutes. Many judges and 
commentators have reached the same conclusion. For example, as 
I believe you pointed out, Mr. Chairman, in the Pentagon Papers 
case, there may be such a precedent there. In that case, 
obviously, the United States sought to restrain the New York 
Times from publishing classified documents relating to the 
Vietnam War.
    While the Supreme Court did not decide the question of 
whether the First Amendment immunizes the press from 
prosecution for publishing national defense information given 
to them by a leaker, five concurring Justices questioned the 
existence of such blanket immunity. In his concurring opinion, 
Justice White stated: ``[F]rom the face of [the statute] and 
from the context of the Act of which it was a part, it seems 
undeniable that a newspaper, as well as others unconnected with 
the Government, are vulnerable to prosecution under 793(e) if 
they communicate or withhold materials covered by that 
    Further, the Court of Appeals for the Fourth Circuit has 
affirmed that the First Amendment does not prevent prosecutions 
under 793 for unauthorized disclosures of classified 
information and did so over the objection of various news 
organizations that appeared in the case as amici to support the 
defendant's First Amendment arguments. Likewise, it is the 
conclusion of legal commentators with respect to Section 798 
that reporters are not exempt from the reach of this statute if 
the elements of the statute are otherwise met.
    I would emphasize, however, that there is more to consider 
here beyond the mere question of the reach of the laws as 
written. The Department recognizes that freedom of the press is 
both vital to our Nation and protected by the First Amendment.
    The Department has never in its history prosecuted a member 
of the press under Section 793, 798, or other sections of the 
Espionage Act of 1917 for the publication of classified 
information, even while recognizing that such a prosecution 
could be possible under the law.
    As a policy matter, the Department has taken significant 
steps to protect, as much as possible, the role of the press in 
our society. This policy is embodied in Section 50.10 of Title 
28 of the Code of Federal Regulations, which requires that the 
Attorney General approve not only prosecutions of members of 
the press but also investigative steps aimed at the press, even 
in cases where the press is not itself the target of the 
investigation. This policy--voluntarily adopted by the 
Department--ensures that any decision to proceed against the 
press in a criminal proceeding is made at the very highest 
levels of the Department.
    In a press conference last week, the Attorney General 
stated that the Department's ``primary focus'' is on the 
leakers of classified information, as opposed to the press. The 
strong preference of the Department is to work with the press 
not to run stories containing classified information, as 
opposed to other alternatives. The Attorney General has made 
consistently clear that he believes that our country's national 
security interests and First Amendment interests are not 
mutually exclusive and can both be accommodated.
    I appreciate very much the opportunity to appear before you 
and would be happy to answer your questions.
    [The prepared state of Mr. Friedrich appears as a 
submission for the record.]
    Chairman Specter. We have been joined by Senator Grassley. 
Senator Grassley, would you care to make an opening statement?
    Senator Grassley. I think I will put the statement in the 
record. It is a very short statement. I just think I will put 
it in the record.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Chairman Specter. Mr. Friedrich, you say--I believe your 
words--that it is undeniable that the Department of Justice has 
the authority to prosecute a newspaper and a reporter for 
disclosure of classified information?
    Mr. Friedrich. I believe I was quoting one of the 
concurring opinions in the Pentagon Papers in using that word.
    Chairman Specter. Well, aside from the concurring opinion 
of Justice White, joined in by Justice Stewart, is it the 
position of the Department of Justice today that Section 793 
would warrant--would authorize the prosecution of a newspaper 
and a reporter for publishing classified information?
    Mr. Friedrich. I think the answer to that, Senator, is that 
the Department has consistently interpreted that statute so as 
to read it as to apply to anyone to whom the elements of the 
    Chairman Specter. You are giving me a yes answer?
    Mr. Friedrich. I am, sir.
    Chairman Specter. And is it the position of the Department 
of Justice that under Section 798 a newspaper and a reporter 
can be prosecuted criminally for the disclosure of classified 
    Mr. Friedrich. I would provide the same answer there, 
    Chairman Specter. The answer is yes?
    Mr. Friedrich. Yes.
    Chairman Specter. So you are saying that the New York Times 
and its reporter, James Risen, are subject to prosecution for 
the disclosures last December 17th about the surveillance 
program without warrants?
    Mr. Friedrich. Obviously, Senator, I can't comment as to 
any particular case or any specific matter. As a general policy 
proposition, I think the Department has consistently taken the 
position with respect to those particular statutes that it does 
not--they do not exempt a class of professionals, any class of 
professionals, including reporters, from their reach. I think 
it is important at the same time to bear in mind what the 
Attorney General said recently, which is that our primary focus 
is on the leakers themselves, as opposed to members of the 
    Chairman Specter. I understood what you said about primary 
focus, but primary focus leaves latitude for a secondary focus.
    Mr. Friedrich. It would.
    Chairman Specter. Has the Department of Justice considered 
the prosecution of any newspaper or any newspaper reporter for 
the disclosure of classified information?
    Mr. Friedrich. Again, Senator, you know, I don't think it 
would be appropriate for me to comment as to whether or not--
    Chairman Specter. I am not asking you about a specific 
case. I did and you declined to answer, and I might have 
pressed it but I am not. But I am asking you whether there is 
any case, without specifying the case, where the Department of 
Justice has considered prosecuting a newspaper or a reporter 
for the disclosure of classified information.
    Mr. Friedrich. With respect, Senator, I think that I have 
to decline to answer that question as well. I don't think it 
would be appropriate for me to give an indication one way or 
another, and I hope people don't read anything into my answer 
one way or another.
    Chairman Specter. Well, I disagree with you, Mr. Friedrich. 
I understand your point in not talking about a specific case. I 
do not agree with it, but I understand it. But I do not even 
understand your point in declining to answer whether the 
Department of Justice has ever considered it. The answer to 
that would lead to some other questions as to--go ahead. I see 
you want to speak.
    Mr. Friedrich. Just to clarify, I heard you initially ask 
me is it being considered now. I heard you a moment ago ask has 
it ever been considered. My understanding is there are 
historical examples. I think some of the later panelists may be 
able to comment more cogently than I can about historical 
examples in which that possibility--
    Chairman Specter. I am not interested in history this 
morning. I am interested in current events. I am interested to 
know whether this Department of Justice, say the Ashcroft 
Department or the Gonzales Department, has ever considered the 
prosecution of a newspaper or a reporter for disclosure of 
classified information.
    Mr. Friedrich. With respect, Senator, I believe I have to 
decline to answer that question.
    Chairman Specter. The Lugar bill, which has been 
significantly modified in Committee, provides for a reporter's 
shield but has an exception if there is a matter of national 
security, and it essentially calls upon the court to undertake 
a weighing of the public interest in the disclosure of the 
information to ferret out wrongdoing or the press' 
traditionally historic role in disclosing wrongdoing contrasted 
with the national security interest involved.
    Do you think that that is an appropriate standard for 
weighing newspaper privilege contrasted with the interest of 
national security?
    Mr. Friedrich. As to the general matter of whether such a 
privilege should be codified, I believe that the Department has 
consistently taken the position that such legislation is not 
needed and that the procedures and policies that the Department 
has in place with respect to the circumstances in which 
compulsory process should be issued against reporters are 
themselves a sufficient safeguard.
    Chairman Specter. Well, the red light went on, and I do not 
usually transgress, but with Senator Grassley's acquiescence, I 
am going to ask an important followup question. Do I have your 
consent, Senator?
    Senator Grassley. You do.
    Chairman Specter. I appreciate that you do not think 
legislation is necessary, and I am not surprised. The 
administration does not think legislation is necessary to deal 
with unauthorized surveillance. The administration as yet has 
not provided an answer to this Committee on legislation, which 
has been pending for weeks, which would give jurisdiction of 
that program to the Foreign Intelligence Surveillance Court to 
determine constitutionality. Every time the Congress asserts 
some oversight authority, the administration pulls back.
    When there was a pressure applied to have the Intelligence 
Committees informed about the warrantless searches, the 
administration declined, even though the National Security Act 
of 1947 mandates it for committees.
    When this Committee, when the Judiciary Committee became 
active, the administration relented and conceded to allow a 
Subcommittee of the Intelligence Committee, seven Senators, to 
know. And the House at first resisted a Subcommittee and then 
finally acquiesced on an 11-person subcommittee, and then only 
in the face of the Hayden nomination was the administration 
dragged kicking and screaming into complying with the National 
Security Act of 1947 to inform the Intelligence Committees.
    So I am not surprised that the administration does not 
think that legislation is necessary. But my question was not 
whether the administration thought legislation was necessary. 
My question is whether you think that if there is legislation, 
it is appropriate to have a balancing test where a court would 
have the authority to weigh the public policy importance of the 
national security interest contrasted with the public policy 
importance of the disclosure.
    Mr. Friedrich. Senator, I think the best way to answer that 
is in the context--I know that Deputy Attorney General Comey at 
the time provided a statement with respect to the media shield 
legislation. This panel also heard from U.S. Attorney Chuck 
Rosenberg, who discussed in detail the Department's position at 
the time with respect to media shield.
    I think the overall objection would be that the media 
shield legislation would shift from the executive branch to the 
courts the decision as to whether a subpoena is needed, what 
the competing interests are, how fast it needs to be issued, 
whether or not it is essential to the case. We feel that 
those--in terms of the Department's exercise of its 
responsibility in this area, I think as to confidential source 
subpoenas, something like only 13 have been issued in the last 
15 years. That would be on the average something of one a year 
or less. I think the historical record would be that the 
Department has responsibly exercised its authority in this area 
and that, you know, there are going to be occasions when we 
need to move quickly.
    I accept that the balance you pose is an important one. I 
think that the--I would like to think the record of the 
Department is that it has exercised its judgment in this area 
responsibly. And let's not forget, I mean, there are occasions 
when it may be important to move very quickly in terms of the 
issuance of compulsory process. I think that the example that 
Deputy Attorney General Comey gave--
    Chairman Specter. Just a second.
    Mr. Friedrich. I am sorry, sir.
    Chairman Specter. Go ahead.
    Mr. Friedrich. I think, sir, the example that Deputy 
Attorney General Comey gave in a prepared statement that he 
rendered was an occasion that came up on the afternoon of 
September 11th when the U.S. Attorney's Office in San Francisco 
wanted to issue a subpoena to a news organization which had 
received information, I understand, from some type of source 
indicating that bad things would happen on that day. I do not 
have any factual knowledge of that situation, but that was the 
example that Deputy Attorney General Comey gave, and I think it 
certainly highlights the fact that there may be a need to move 
quickly, and this legislation I think might compromise that.
    Chairman Specter. Well, I will pick up on your point about 
shifting the decision from the executive branch to the judicial 
branch, which is exactly what I think our Constitution 
    Senator Leahy, would you mind yielding to Senator Grassley? 
I intruded on his time, and he has a 10 o'clock--
    Senator Leahy. No, I have no objection. I came in late as 
it was.
    Chairman Specter. Senator Grassley?
    Senator Grassley. Thank you, Senator Leahy.
    When Director Mueller was before this Committee just a few 
weeks ago, I asked him about the Bureau's attempt to obtain 
Jack Anderson's papers by convincing the 79-year-old widow to 
sign a consent form that she says she did not fully understand. 
I wanted to know at that time whether that was an appropriate 
investigative technique, but Director Mueller said at that time 
that he did not know enough about the circumstances to answer 
my questions. In preparing to testify here today, I would hope 
that you have taken some time to learn the details of what the 
agents did in this case and why they did it. So I ask you, Did 
the agents who went back and contacted Olivia Anderson without 
her family's permission act appropriately?
    Mr. Friedrich. Senator Grassley, I think that that is a 
question that I am not going to be able to shed light on, but I 
want to carefully explain the reasons why I cannot. First of 
all, there is a pending trial in the Eastern District of 
Virginia called the Rosen and Weissman case, and in that case, 
the defense in that case has filed a motion to dismiss the 
indictment for prosecutorial misconduct based upon the actions 
taken in the Anderson matter. My understanding is that the 
district judge denied that particular motion but that that case 
remains pending. And since it is a part of pending litigation 
or relevant to a part of pending litigation, I don't think that 
it is something that I can comment on.
    My understanding, however, Senator, is that the Bureau is 
following up on the questions you asked and that they intend to 
submit some type of response to you. And I don't want to 
interpose myself in the middle of that.
    Senator Grassley. And your view is that the circumstances 
in the Anderson questioning could influence that case, that 
other case?
    Mr. Friedrich. That was the position--yes, sir. The 
position that the defense has taken is that there is a factual 
link between the action in the Anderson matter and the pending 
investigation that has resulted in a trial in the Eastern 
District of Virginia. And since that is the circumstance, I 
simply just can't comment on that matter.
    Senator Grassley. According to Kevin Anderson, he informed 
the FBI that he was acting as his mother's attorney, and he 
authorized the first meeting between the mother and the FBI. 
However, he says he did not authorize and was unaware of the 
second meeting where the FBI got her to sign a consent form. 
Can you explain the Justice Department's policy on contacting a 
witness who was known to be represented by counsel? And 
assuming that the Anderson family is correct with what 
happened, did the actions of the agency in this case violate 
that policy?
    Mr. Friedrich. Certainly, Senator, speaking generically--as 
a general matter--there are very specific policies that the 
Department has with respect to contact with represented 
parties. There are also bar rules that apply as well. I would 
say, you know, the general rule as to contact with represented 
parties is that, as an attorney, you are not supposed to do it. 
There are exceptions to that under certain circumstances, but 
certainly as to Department lawyers, those policies exist.
    Senator Grassley. Well, then, did the actions of the agents 
in this case violate that policy?
    Mr. Friedrich. Again, Senator Grassley, with respect to 
this specific factual circumstances, I don't have a specific 
comment on that for the reasons that I had mentioned earlier. I 
will tell you as a general matter there are some distinctions 
between the contact with represented parties rules as they 
apply to Department lawyers versus FBI agents. There are some 
differences between the ways in which those standards apply. 
Lawyers are bound by certain sources of law and policies; 
whereas, agents, depending on the circumstance, may not be 
bound by the same authorities.
    Senator Grassley. Well, then, let's go to the issue of 
classified information. There is some disagreement whether 
these papers contained classified information, and I would 
think the family would know more about that than the FBI.
    The family has said that the files probably do not contain 
classified documents, and the FBI claimed that Professor 
Feldstein confirmed it. However, Professor Feldstein denies 
that he told the FBI that and says that he has seen no 
classified material in the documents. So which is it? Does the 
FBI have a solid reason to think that there is classified 
information in the files that would be harmful to the national 
security if the FBI did not remove them?
    Mr. Friedrich. There again, Senator Grassley, I don't 
believe I can comment on the Anderson matter specifically for 
the reasons that I had mentioned earlier, and hopefully the 
Bureau will be submitting some type of factual submission to 
you on that.
    Senator Grassley. Well, has the FBI taken time to get a 
subpoena or search warrant to force that issue?
    Mr. Friedrich. Again, with respect, I cannot comment 
specifically with respect to the Anderson matter, Senator.
    Senator Grassley. Well, Mr. Chairman, I am very 
disappointed. We asked some of these questions of Director 
Mueller. I will bet that has been more than a month ago, and we 
do not have any more answers. And I would think that the 
Department would send somebody here to testify that could 
answer our questions if they have any respect for this 
Committee whatsoever. I yield.
    Senator Leahy. I think that answers the question. They do 
not have any respect for this Committee. Why in heaven's name 
were you sent up here if all you are going to do is take the 
Fifth Amendment.
    Chairman Specter. I would like to recognize you, Senator 
Leahy. Senator Leahy?
    Senator Leahy. Thank you, Mr. Chairman. I mean, you are 
basically taking what could be called a testifying Fifth 
Amendment. You should be ashamed of yourself, or your superiors 
should be ashamed of themselves. Why in heaven's name were you 
sent up here? I mean, you have been asked by friendly 
Republicans, no matter what questions you are asked, ``Oh, I 
don't think I can answer. I don't think I can answer.'' Why 
were you the one picked to come up here?
    Mr. Friedrich. Senator, I can tell you my understanding, 
that on a staff-to-staff level as between our legislative staff 
and the staff of the Chairman, that it was made clear before I 
came up here that I would not be able to talk about the 
    Senator Leahy. Well, this is what happens no matter what, 
from the Department of Justice or the FBI or anything else. 
Anytime you ask anything where there might have been a screw-up 
by this administration, ``I don't think I can answer that. I am 
not really taking the Fifth. I just won't answer.''
    It is very, very frustrating. There is this arrogance in 
this administration against any kind of oversight, probably 
because they basically have--except possibly for this 
Committee--a rubber stamp Republican leadership that allows 
them to do anything they want. But that is what you are doing.
    Let me ask you this: Is there any truth to the fact that 
some of these papers were looked at because it goes into the 
personal life of J. Edgar Hoover?
    Mr. Friedrich. Senator, again, with respect to the Anderson 
matter, I am not able to comment on that matter at all.
    Senator Leahy. So what you are doing, you are sent up here 
to be a punching bag. Is that it?
    Mr. Friedrich. Senator, again--
    Senator Leahy. You don't have to answer. I realize that. It 
is like the Attorney General. Is there any questions you guys 
are allowed to answer other than your title, the time of day? I 
mean, is this sort of like a prisoner-of-war kind of thing?
    Mr. Friedrich. Senator, I can tell you that, again, my 
understanding in coming up here was on a staff-to-staff level 
that I was--I was led to believe that the Chairman's staff was 
informed that I would not be able to answer questions about the 
Anderson case, precisely for the reasons that I discussed.
    I am prepared, and if you will note the statement that I 
gave specifically relates to the law relating to the 
applicability of the Espionage Act and other statutes that go 
to the disclosure of classified information, that--
    Senator Leahy. Well, let me ask you a little bit about that 
then. We have the Espionage Act. We talk about how that can be 
used. It can also be used, if need be, to chill dissent. This 
administration has spent billions of dollars--that is billions 
with a ``b''--to classify far more material than any 
administration in history, including the administration during 
World War II or World War I when we had real reason to do it. 
We found that in 2004 the Government made 15.6 million 
classification decisions. Sometimes they classified something 
that had been on a Government website for months or even years. 
People had downloaded it thousands of times. Suddenly they say 
it is classified.
    We know some of this intelligence information was 
classified simply to cover up mistakes made by this 
administration. In fact, many, many, many, many times things 
were classified to cover up mistakes by the administration. If 
there was improper classification of intelligence information, 
would that be a proper defense to criminal charges brought 
under the Espionage Act?
    Mr. Friedrich. I think that that would--I think improper 
classification might be a defense to certain statutes.
    Senator Leahy. The Espionage Act?
    Mr. Friedrich. That one I would have to check in 
particular. I am not certain.
    Senator Leahy. For a moment there, I actually thought I was 
getting an answer and I was about to applaud you. It would be 
so unprecedented. And I hate to even highlight it because I do 
not want you to get fired for breaking precedence with the 
Department of Justice. But, you know, if Daniel Ellsberg had 
not leaked the Pentagon Papers to the New York Times and the 
Washington Post, we may never have known about the official 
misconduct during the Vietnam War. If Special Agent Coleen 
Rowley had not publicly revealed problems with the FBI's 
counterterrorism investigation, we may never have known how 
this administration screwed up before 9/11 and failed to 
connect the dots. Should Government be able to use the threat 
of criminal prosecution to shield the public from revealing its 
own mistakes?
    Mr. Friedrich. I think the answer to that, Senator, is that 
there is the Intelligence Community Whistleblower Act of 1998 
that is set up for that specific purpose. If a member of the 
intelligence community has concerns about the legality, has an 
urgent concern about something that they are working on, 
believes it may not be legal, there is a specific process that 
is in place that is set up so that they can bring that to the 
attention of the Inspector General of their agency and the 
matter can be taken up from there all the way to the Hill 
Intelligence Committees, if necessary. So I think that--
    Senator Leahy. I am talking about people at the Department 
of Justice.
    Mr. Friedrich. I am sorry?
    Senator Leahy. What about with people within the Department 
of Justice? Senator Grassley, he and I and others have worked 
very hard on whistleblower legislature. But it seems anytime 
anybody uses Whistleblower, it is a career ender. They get 
shunted aside. They get put into non-work situations. Certain 
administrations--and this is something that probably reflects 
most administrations--will come down on them like a ton of 
bricks if they use it. But you think that is the only 
protection, the whistleblower statutes?
    Mr. Friedrich. What I was answering, Senator, is some have 
suggested simply that because there have been some leaks of 
classified information in the past that some have deemed to 
have important policy or historical value, you know, that that 
simply should make the wholesale leaking of classified 
information OK whenever someone feels like publishing it, 
because there have been occasions when such leaks have revealed 
even illegal conduct. And my response to that is that that is a 
false dilemma because there are procedures in place like the 
Intelligence Community Whistleblower Act that would allow those 
concerns to be handled in a classified environment, all the way 
up to the Hill Intelligence Committees.
    Senator Leahy. Well, let's go into the other stuff, though, 
when somebody does give information out to the press, the 
subject of this hearing. I will put my full statement in the 
record and not take my time for that. But let me ask you this, 
you mention in your statement the Department's official policy 
with regard to the issuance of subpoenas to members of the news 
media. It requires the Attorney General to approve not only 
prosecutions of members of the press, but investigative steps 
aimed at the press, even in cases where the press itself is not 
the subject of an investigation. So my three questions are 
fairly easy.
    First, did Attorney General Gonzales expressly authorize 
the FBI's attempt to rummage through Mr. Anderson's papers? If 
not, who did?
    Second, has the FBI made any attempt to obtain the 
information from alternative non-media sources, which, as you 
testified, is part of the procedures?
    And, third, does the important public policy against 
Government intimidation or harassment of the press become 
obsolete if a journalist has died?
    Mr. Friedrich. Taking the first two questions, Senator, 
again, as I said before, I can't comment on the Anderson matter 
specifically, but what I can tell you is that the procedures 
that are in place are geared toward the issuance of compulsory 
process, such as a subpoena. If there is a circumstance in 
which information is simply requested as a generic matter--
    Senator Leahy. But if you go to an elderly widow shortly 
after her husband has died and have FBI agents show up and say, 
``We want these papers,'' you don't have to get any 
authorization for that?
    Mr. Friedrich. What I can tell you, Senator, as a general 
matter is that those procedures are geared toward the issuance 
of compulsory process. You will notice that in other parts of 
the policy, it asks questions like, Have we attempted to obtain 
cooperation? Have we attempted to obtain the information from 
other means? So that would seem to suggest that the general 
policy would be to try to get voluntary compliance as opposed 
to issuing compulsory process.
    Senator Leahy. And it is totally voluntary if an elderly 
widow is faced with FBI agents flashing badges and saying, ``We 
want these papers.''
    Mr. Friedrich. Again, Senator, I cannot comment on the 
Anderson case.
    Senator Leahy. And the rest of my question I assume you are 
not going to answer, so--
    Mr. Friedrich. I would be happy to try to answer any 
additional questions you have.
    Senator Leahy. No, no. The rest of that question. It is a 
three-part question. I mean, I asked--
    Mr. Friedrich. Would you mind restating, sir, your third 
    Senator Leahy. Did the FBI make any attempt to obtain the 
information from alternative non-media sources? And you give 
the same non-answer to that. Is that correct?
    Mr. Friedrich. I believe that your third question was 
something different, but I may be mistaken.
    Senator Leahy. The second part, did they make any other 
attempt. The third part was, does the important public policy 
against Government intimidation or harassment of the press 
become obsolete once a journalist dies?
    Mr. Friedrich. Senator, I think that--let me separate that 
question, if I could, into the issue of deceased reporters 
versus deceased sources. As to the applicability of that policy 
toward deceased members of the media, you know, I doubt that 
that is something that has come up often. But in preparation 
for this hearing and having talked to others in the Department 
about it, I think that this is, frankly, an area that the 
Department should take a look at.
    What I can tell you in the interim is as we are taking a 
look at it, if a case comes up which involves--where the 
Department is considering the issuance of compulsory process to 
the estate of a deceased reporter, even though these policies 
might not on their face apply, I will give you an assurance on 
behalf of the Department that they will be followed until we 
can followup and give you an answer on that.
    Senator Leahy. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Leahy, and your full 
statement will be made a part of the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. Before turning to Senator Feingold, I 
have just a brief comment. As you have noted, there is a 
certain level of concern between the Congress exercising 
oversight and the responses of the Executive, and we fully 
appreciate the inherent constitutional authority the President 
has under Article II and the statutes which involve the Foreign 
Intelligence Surveillance Act and questions whether there is 
inherent power for the electronic surveillance program, and 
sometimes the discussions get a little heated. Senator Leahy 
and I have been able to maintain a pretty cool atmosphere. I 
don't really think anybody thinks you ought to be ashamed of 
yourself. You are carrying out the instructions from the 
Department of Justice, and we understand that. And we will 
pressure you for information to the extent we can in a 
respectful manner, and we will not use you as a punching bag. 
And when we question you, to the extent we can, we have also to 
question the Attorney General. He is going to be back before 
this Committee later this month, and we understand that you 
work for him and work for the Department.
    Senator Feingold?

                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. Just a brief 
statement. Thank you for holding the hearing. A free society 
cannot long survive without a robust free press, and that is 
why I have expressed concern before about the chilling effect 
of high-profile contempt prosecutions of journalists. It is 
also why I support a Federal reporter's shield law to join the 
reporter's privilege that is already recognized in 49 States 
plus the District of Columbia.
    It is also why I am deeply worried about possible 
prosecution of journalists under the Espionage Act of 1917 for 
publishing classified information. As we all know by now, the 
Attorney General a few weeks ago was asked about this 
possibility. He responded that, ``There are some statutes on 
the books which, if you read the language carefully, would seem 
to indicate that that is a possibility.''
    That may not sound like it, but it was a very dramatic 
statement. The Espionage Act has never before been used to 
prosecute journalists for publishing classified information, 
and there are serious questions about whether Congress intended 
it to apply to journalists. It also poses very serious First 
Amendment questions that I know some of the witnesses will be 
addressing and have addressed.
    Mr. Chairman, of course, we must take the leaks of 
classified information very seriously, but we have other tools 
at our disposal. Individuals who have security clearances and 
have made a commitment to the United States Government to keep 
it secret should be prosecuted if they violate the law by 
leaking classified information. That is where our Government's 
enforcement focus has always been, and I think that is where it 
should be. We can be tough on leakers without going after 
journalists and creating a very significant chilling effect. 
But I am grateful that you are having this hearing, Mr. 
Chairman, and I appreciate the opportunity to make a brief 
    Chairman Specter. Thank you very much, Senator Feingold.
    Mr. Friedrich, going back to your opening statement, I had 
asked you about the legislation introduced by Senator Lugar, 
and since modified in the Committee, about establishing a 
balancing on a shield or a reporter's privilege in terms of 
weighing the public policy interests of the First Amendment and 
public disclosure contrasted with the national security 
interest involved. And you responded to that that your 
Department was opposed to that on the ground of transferring 
responsibility from the executive branch to the judicial 
branch. And my question really turns on the preference of 
having the judiciary make a determination as opposed to the 
executive branch.
    In the section that you refer to, 50.10, the standard as 
set forth on the Department of Justice decision to conduct an 
investigation--to move into the area where there are news-
gathering interests is to ``strike the proper balance between 
the public's interest in the free dissemination of ideas and 
information and the public's interest in effective law 
enforcement and the fair administration of justice.''
    Well, in a case where you have a constitutional issue of 
freedom of the press and you have the weighty considerations 
involved in that kind of a balancing, isn't it the traditional 
standard in this country in case of a contest to have a matter 
decided by the courts instead of by the executive branch, which 
has a unique interest in the prosecution?
    Mr. Friedrich. Let me make two points there, Senator. First 
of all, as a practical matter, once a subpoena or once 
compulsory process is cut, you know, if the newspaper opposes 
that, they would file a motion to quash, which would take that 
matter into the courts at that point, and the courts would be 
able to make whatever determination they want. So far as a 
constitutional balancing, obviously the Branzburg case has held 
as a constitutional matter that there is not a right of 
reporters to appear not to testify under--the First Amendment 
does not create a bar to that regardless of any pledge that a 
reporter may have made to his or her sources.
    So I think so far as the constitutional issue in terms of 
the issuance of process, I believe that the Court has answered 
that question. There is still an open question as to whether or 
not there may be a privilege at common law, but I think as to 
the constitutional question, I believe that that question has 
been answered.
    Chairman Specter. Well, whether there is a privilege in 
common law is not determinative if Congress decides to create a 
privilege. There is no newsman's privilege at common law. There 
is a husband and wife privilege. There is a client-attorney 
privilege, although there is some reason to doubt whether there 
is anymore an attorney-client privilege with what the 
Department of Justice is doing today, with the coercive 
activities to get lawyers and clients to waive the attorney-
client privilege.
    But moving aside from the common law privilege issue, which 
is not relevant here, isn't it desirable to have the Congress 
make a determination as to what the considerations are as 
opposed to, as you say, have the judge do whatever he or she 
    Mr. Friedrich. There, Senator, again, I think that the 
position of the Department--and I know you have heard testimony 
as to that issue from a number of representatives from the 
Department--has consistently been that that legislation in 
creating a media shield is not needed, that it would slow down 
the effective administration of justice, that--
    Chairman Specter. Slow down the effective administration of 
justice to have Congress establish standards for what the 
privilege is, on a constitutional issue?
    Mr. Friedrich. If that would mean creating a media shield 
law under which the Department in every case in which it wanted 
to issue a subpoena would have to go to court to do so before 
it could be issued, yes, I think that would slow the process 
down. I know even in the case of litigating privilege matters 
in the grand jury context sometimes--
    Chairman Specter. Well, our legislation does not require 
the Department of Justice to go to court before issuing a 
subpoena, and our legislation provides for a statutory 
privilege and establishes legislative standards as to what the 
courts should consider in determining whether the privilege is 
    Mr. Friedrich. Senator, I will be happy to have folks at 
the Department take a closer look at that bill and submit to 
you a more detailed response as to what the position of the 
Department is.
    Chairman Specter. Well, the red light went on when you 
started your answer, but if you can get a more detailed 
response from the Department of Justice, more power to you. 
Thank you.
    Senator Leahy?
    Senator Leahy. I was kind of chuckling at that myself. If 
you know how to get questions answered in DOJ, I have got 
several letters that have gone unanswered for years, both when 
I was Chairman and as Ranking Member of this Committee. So you 
have a magic touch that nobody else seems to have, including 
the Attorney General. In fact, some of these even Senator 
Specter and I have asked him in the Oval Office of the 
President with the Attorney General standing there, and we 
still do not get the answers. But let me ask you one thing you 
could answer, and it has nothing to do with this.
    In January, we learned that the Justice Department issued 
subpoenas to three major Internet companies. They wanted 
information about what millions--I assume most of these 
millions Americans are law-abiding--were searching for on the 
Internet. Now we hear they have asked Microsoft, AOL, Google, 
and other Internet companies to retain records on their 
customers' web-browsing activities.
    My question is this: What sorts of records does the 
Department ask these companies to retain? For how long? What 
were the companies' responses? And should we be expecting a 
proposal from the Department for legislation in this area?
    Mr. Friedrich. Senator, as I sit here, I don't know the 
answer to that in terms of what was requested or the 
circumstances under which it was requested. I don't know that I 
will be able to respond, but I am happy to look into it, and if 
we can give you a response, we will.
    Senator Leahy. Well, will you do this: respond either way. 
If you can't respond, let me know that, because then I will 
know whether to ask somebody else.
    Mr. Friedrich. All right.
    Senator Leahy. Thank you. And as I said, and following up 
on what Senator Specter said, I did not want you to be here as 
a punching bag. I just felt some of the people in your 
Department maybe set you up that way.
    Mr. Friedrich. I will have a much happier walk back down 
Pennsylvania Avenue knowing that, Senator.
    Senator Leahy. It is a lovely day. I was out walking about 
5:30 this morning. I hope it is still just as nice. And that is 
a nice walk. We are fortunate, both you and I, to be able to 
work in a city this beautiful and this historical. Thank you, 
Mr. Chairman.
    Chairman Specter. Senator Kyl, would you care to question?
    Senator Kyl. No. Thank you.
    Chairman Specter. Just another comment or two, and then we 
will move to the next panel.
    Mr. Friedrich, when you go back to get a response from the 
Department of Justice on the shield law, the balancing which we 
have discussed here, I wish you would take with you, although 
we have called this to the attention of the Attorney General 
and the administration at very high levels, the concerns that 
some of us have about Congressional oversight. And when we talk 
about shifting the decision from the executive branch to the 
judicial branch, I would suggest to you that that is really the 
tradition of the administration of justice.
    I know that the Department of Justice believes, as the 
inscription is over your building, the Department wins whenever 
justice is done. And I was a prosecutor, and a prosecutor has a 
quasi-judicial function to see that justice is done. But there 
is still a big advocate's role--a big, big, advocate's role in 
the prosecutor. So that when you have these questions, they are 
really traditionally decided in our system by the courts, not 
by the prosecutor, even though the prosecutor is quasi-
judicial. And when you seek an answer on the legislation as to 
reporter's shield, see if you can get one on the legislation 
which is pending to turn over to the Foreign Intelligence 
Surveillance Court the determination of constitutionality of 
the administration's surveillance program. And I will not ask 
you whether you think--or maybe I will. Don't you agree that it 
is the tradition in our system on these questions of 
disagreement between the executive and legislative branch, 
Article I and Article II officials, to have them decided by the 
courts. And isn't the tradition, before there is an invasion of 
privacy or a search, search and seizure, that there is the 
imposition of the impartial magistrate between the citizen and 
the Government?
    Mr. Friedrich. I certainly agree with you, Senator, that 
that is the procedure in search warrant cases and that, you 
know, the courts have spoken at some length about the different 
role of the executive and legislative branches and where the 
appropriate power lies between. I believe in the context of 
media shield legislation, certainly with respect to some of the 
proposals that have been put forth--and I do not claim to have 
familiarity with all of them. Some of them would seek to have 
the Government essentially get prior approval from the judicial 
branch before even issuing a subpoena, and that is what I was 
alluding to earlier.
    Chairman Specter. Well, I appreciate your answer, and we 
are seeking a way to accommodate the interests of the executive 
branch and maintaining the secrecy of the surveillance program. 
We have the Foreign Intelligence Surveillance Court which has 
an unblemished record for maintaining confidentiality and 
secrecy, and they have the expertise to make the decision. And 
we are trying to find some way to have an accommodation with 
the Department of Justice, and this Committee has a different 
function than the Intelligence Committee. Our job is to have 
Congressional oversight on constitutional issues. And we are 
right in the middle of a constitutional issue on the electronic 
surveillance program, and we are right in the middle of a 
constitutional issue on freedom of speech and reporter's shield 
and the potential for prosecution under Sections 793 and 798.
    But we appreciate your categorical answer that the 
Department of Justice thinks it has the authority to prosecute 
criminally because I believe that is an invitation to the 
Congress to legislate on the subject, because we do decide 
where the criminal prosecutions will be brought. That is 
clearly our authority, and we are now on notice as to what we 
need to consider.
    Mr. Friedrich. If I may, Senator?
    Chairman Specter. Sure.
    Mr. Friedrich. Simply in terms of a categorical answer, 
again, I just want to clarify that I am speaking, as I believe 
the Attorney General was speaking, as to the potential reach of 
the law. I just want to again emphasize that, you know, the 
Attorney General has also said that our primary focus is on 
prosecuting the leakers as opposed to other options, and that 
our primary--that our much preferred path would be to attempt 
to work with reporters voluntarily to convince them not to 
publish classified information which could lead to the 
compromise of our most sensitive technologies, harm our young 
men and women who serve in the service of this country, and 
cause damage.
    Chairman Specter. Well, I appreciate your addendum, and I 
started off by saying that the national security interests are 
enormous--enormous--and they have to be balanced with the 
constitutional rights. But where you have a criminal statute 
where you can send people to jail and have a chilling effect on 
newspapers, it is really the Congressional role to define it 
and to establish standards. And I think clearly the ball is in 
our court. You have some balls in your court, and we have some 
in our court.
    I have just been notified that we have a vote on, so we 
will go vote, and we will be back promptly to take up the 
second panel. Thank you all.
    [Recess 10:28 a.m. to 10:54 a.m.]
    Chairman Specter. Would you gentlemen stand for the 
administration of the oath? Do each of you solemnly swear that 
the evidence you give before this Committee will be the truth, 
the whole truth, and nothing but the truth, so help you God?
    Mr. Anderson. I do.
    Mr. Smolla. I do.
    Mr. Schoenfeld. I do.
    Mr. Feldstein. I do.
    Chairman Specter. May the record who that each has answered 
in the affirmative. Thank you very much for coming in, 
gentlemen. We turn to our first witness, who is Mr. Kevin 
Anderson, a partner in the law firm of Fabian and Clendenin, 
Salt Lake City, Utah; bachelor's degree from the University of 
Utah; law degree from Georgetown. He acted as an assistant to 
his journalist father, Mr. Jack Anderson, in the 1970s. Thank 
you very much for coming in today, Mr. Anderson, and we look 
forward to your testimony.

                           CITY, UTAH

    Mr. Anderson. Thank you, Chairman Specter and members of 
the Committee. I appreciate this opportunity. I would like to 
acknowledge in the room with us today is my mother, and there 
are six of the nine members of my family also present.
    Chairman Specter. All present? Would they mind standing so 
we can recognize them and acknowledge them.
    Now, you say, Mr. Anderson, that your mother is right 
behind you, and the others who stood are your siblings?
    Mr. Anderson. Yes, that is correct.
    Chairman Specter. And six of the nine?
    Mr. Anderson. Yes, including me, are here.
    Chairman Specter. Well, that is a wonderful family. 
Congratulations to you, Mrs. Anderson, and all the Andersons. 
And reset the clock to 5 minutes.
    Mr. Anderson. Thank you, Senator.
    I will address the events surrounding the FBI's request to 
access my father's papers and my family's view of how he would 
have reacted to the Government's investigation of journalists 
who publish classified information.
    About 6 weeks after my father's death, FBI Agent Leslie 
Martell called my mother to gain access to Dad's papers. As the 
attorney in the family, I called her and was told that the FBI 
believed that there were classified documents among Dad's 
papers that would help the Government in a criminal 
investigation. I was left with the impression that the FBI's 
probe concerned terrorism. I was assured that no member of the 
family was the target of the investigation.
    As several members of this Committee know, Dad often 
cooperated with criminal investigations where it would not 
violate the confidentiality of his sources. I told Agent 
Martell that she could meet with Mom.
    Afterwards, Mom was excited to tell me that she thought 
Agent Martell might be related through her family roots in West 
Virginia, where Mom was born and raised. She found this more 
interesting than what the FBI wanted. All she remembered was 
that it involved something about Dad's papers from the 1970s.
    My Mom cooperated with the investigation. She told the FBI 
agents where the boxes were located. She put them in touch with 
Dr. Feldstein and Dr. Chambless, both of whom had reviewed some 
of the boxes. Dr. Chambless, with the blessing of the family, 
even sent a 12-page inventory of 80 of the boxes he had 
reviewed to the FBI.
    Several weeks later, the FBI asked me to confirm that the 
family and not the Gelman Library at George Washington 
University owned the papers, and I confirmed that the family 
did own them. And because of the family's concern, I told the 
agent at that time that the family would need more information 
about what documents the FBI wanted.
    Next I received a call from Dr. Feldstein at GW saying that 
the FBI claimed to have a consent that Mom had signed. I 
immediately called Agent Martell, upset that as the family 
attorney I had not been told about the consent and had not even 
seen it. To this day, I have not seen the consent. She was very 
apologetic and arranged a conference call. During that call, 
two FBI agents and one of the U.S. Attorneys General involved 
in the criminal case told me that the request for Dad's papers 
was in connection with the AIPAC investigation.
    The FBI said that classified materials may have been passed 
between Dad's office and the defendants in that case and 
perhaps even between Dad's office and a member of the Foreign 
Intelligence Service in the early 1980s. They wanted to check 
for fingerprints on some of the documents. I told them that I 
thought that the presence of those types of documents in Dad's 
papers was extremely unlikely. I also expressed my concern to 
them that the AIPAC prosecution could be viewed as a step 
toward prosecuting journalists. I felt Dad would have 
vigorously opposed such an effort. The FBI and Department of 
Justice representatives assured me that they were not after 
Dad's sources, family members, or George Washington University 
for possession of classified documents.
    We also discussed hypothetically the scope of an FBI review 
of Dad's papers, assuming that the family would decide to 
cooperate. The agents made it clear that they intended to 
review all of his papers, regardless of their relevance to the 
AIPAC case. In addition, they repeatedly stated that they would 
be ``duty bound'' to remove all possible classified documents, 
either permanently or redact them and return them. I felt this 
would destroy the political, historic, and cultural value of 
Dad's papers.
    I made several suggestions to limit the scope. These were 
rejected, including my offer to personally review the papers to 
locate anything related to the AIPAC case. I was told that 
because I did not have a security clearance, I could not review 
my father's papers.
    In early April, at a meeting with FBI's former First 
Amendment attorney, Michael Sullivan, and an attorney for GW, I 
came to the conclusion that the AIPAC investigation was nothing 
but a fishing expedition, at best, and at worst, a pretext for 
the FBI to learn what it could not discover about Dad's sources 
when he was alive. The family met and instructed Mr. Sullivan 
to formally reject the FBI's request. A copy of that letter has 
been provided to the Committee.
    The family feels that the FBI's review of Dad's papers and 
removal of documents would be contrary to his wishes. He taught 
us that the press' constitutional role was to keep an eye on 
those who govern us, not to be a bulldog or a lapdog, but a 
watchdog. He used to say that our Founding Fathers understood 
that Government by its nature tends to oppress. There is 
nothing in the Constitution about the freedom to practice law 
or to practice medicine, but there is something in the 
Constitution about the freedom of the press. Dad was fond of 
quoting Thomas Jefferson, who was vilified by the press more 
than any recent politician. ``[W]ere it left to me to decide 
whether we should have a government without newspapers, or 
newspapers without government, I should not hesitate a moment 
to prefer the latter,'' Jefferson wrote.
    For more than a generation, Dad and his mentor, Drew 
Pearson, were among the most significant journalistic checks in 
the Nation's capital. At a time when Members of Congress and 
even the White House were afraid of J. Edgar Hoover, Dad had 
his staff openly rifle through Hoover's trash to give the 
former FBI Director a taste of his own medicine. Dad often said 
that documents that came across his desk were classified as 
``national security'' secrets, but he characterized them as 
really ``political security'' secrets. They showed the misdeeds 
and manipulations of Government employees who had abused the 
public trust and then tried to sweep the evidence under the 
secrecy stamp. Such information should not be hidden from the 
    Ours is a Government of the people. Dad taught us that the 
people are the sovereigns. Those who work in Government are our 
servants. We, the people, have the right to know what our 
servants are doing when they act in our name. The secrecy stamp 
must not shield the actions of our officials from scrutiny. The 
press, as the watchdog, must be free to criticize and condemn, 
to expose and oppose the Government.
    Finally, concerning the reporter's shield law being 
considered by this committee, I believe that Dad would have 
insisted that the First Amendment provides the best shield. I 
know that my father was concerned with protecting his sources. 
This concern is real. After the recent publicity, I have been 
contacted by several sources who still fear that their 
identification would result in political, financial, and even 
physical harm. The FBI's efforts have underscored the need for 
protection of journalists, their families, and in this case--
excuse me, journalists, their sources, and in this case, even 
their families.
    Again, thank you for this opportunity.
    [The prepared statement of Mr. Anderson appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Anderson. We 
turn now to Dean Rodney Smolla, dean of the University of 
Richmond School of Law; bachelor's degree from Yale, a law 
degree from Duke; has taught at many law schools--College of 
William and Mary, Duke, University of Denver, University of 
Arkansas, University of Illinois, at DePaul College of Law. 
Quite a record, and now he is the dean at the University of 
Richmond School of Law. Thank you very much for coming in, and 
the floor is yours, Dean Smolla.


    Mr. Smolla. Thank you, Mr. Chairman. I am going to go right 
to the heart of the constitutional and public policy issues 
that you and others have been addressing throughout the 
hearing. As you have recognized and your fellow Senators have 
recognized, the Constitution and the First Amendment 
specifically absolutely have to be a vital part of this 
discussion. We start with the First Amendment baseline, which 
is a long series of cases, a venerable series of cases, in 
which the Supreme Court of the United States has made it clear 
that all citizens, including reporters, have a presumptive 
First Amendment right to publish truthful information that is 
lawfully obtained. That is sometimes described as the Daily 
Mail line of cases.
    It is important to remember that in almost every one of 
those cases, somebody did something wrong to give the material 
to the reporter--there was a leak, the material was classified, 
there was a restraining order on the material. Nevertheless, 
the reporter obtained the material and the Supreme Court 
sustained the First Amendment right of that journalist to 
publish that material.
    Now, that line of cases puts great pressure on that phrase 
``lawfully obtained,'' and to this day, the Supreme Court has 
never given that phrase complete clarity. A narrow concept of 
it could mean that the reporter does not in some affirmative 
way engage in lawbreaking in obtaining the material, the 
reporter does not hack into the computer file or break into 
somebody's office. But it could also have a broader meaning. It 
could conceivably mean that if the reporter passively receives 
information that the reporter knows someone else is breaking 
the law in handing over to that reporter, that the reporter is 
in some sense tainted by the transaction and that the material 
is not lawfully obtained.
    It is clear that the Supreme Court itself does not believe 
this is a First Amendment question that is completely settled. 
For example, in one of the famous cases in this line, Florida 
Star v. B.J.F., the Court said--I will quote it directly: ``The 
Daily Mail principle does not settle the issue whether, in 
cases where information has been acquired unlawfully by a 
newspaper or by a source, government may ever punish not only 
the unlawful acquisition, but the ensuing publication as 
    In one of the few cases in which the Court has gotten 
deeply into this, a recent case, Bartnicki v. Vopper, the 
Supreme Court dealt with illegally intercepted cell phone 
conversations. None of us wants to hear our cell phone 
conversations broadcast on the radio or printed in a newspaper. 
The Supreme Court in that case held that the First Amendment 
protected the journalists who published and broadcast that 
information, even though plainly someone broke the law in 
intercepting it.
    Now, Bartnicki is a somewhat confusing and ambivalent 
ruling because two Justices who were necessarily the majority 
in that case, Justice Breyer and Justice O'Connor, took a sort 
of intermediate position. Justice Breyer, who wrote that 
concurring opinion, said, ``In this case, I believe the First 
Amendment protects what the reporters did, but it is important 
to me that what was happening is that the material that was 
being broadcast revealed wrongdoing, potential violence, 
potential lawbreakers by the speakers. And in that posture,'' 
he said, ``I think the First Amendment trumps,'' but he left 
open the possibility that this was not an absolute principle 
and that you could have a narrowly crafted law that would 
satisfy the First Amendment standards.
    Many of the other cases that are out there, including the 
Pentagon Papers case, which you have alluded to, Senator, do 
not give us a clear answer. We know in the Pentagon Papers case 
that the Supreme Court said in the context of national security 
that even the doctrine of prior restraint was not absolute, 
that there could come a situation where you would allow a prior 
restraint under the First Amendment. We know the Court left 
unresolved one of the questions you were questioning the 
Justice Department representative on, which is whether the 
Espionage Acts do or don't allow for prosecution.
    But one critical thing that is central to Pentagon Papers, 
that is part of the holding, is that it was clearly critical to 
a majority of the Court that the material at issue did not 
compromise any ongoing live operations with regard to the 
prosecution of the Vietnam War. It was a matter of great public 
interest. It unveiled wrongdoing in some respects. But it was 
history, and it had passed into the public domain, it seemed 
the Court was saying, which shows us that it must be the rule 
that just because something is classified does not mean that 
there is carte blanche for the Government to go after a 
journalist who traffics in it.
    It would overstate matters to say that the First Amendment 
absolutely bars making the receipt of information or the 
downstream publishing of the information unconstitutional. We 
know that cannot be the case. The Court has never said that in 
the Daily Mail line of cases, and we have one prominent example 
where the Court has held to the contrary, in the obscenity 
area, where the Supreme Court held originally in Stanley v. 
Georgia that you could not make the mere possession of obscene 
material--which was illegal. You could not make the mere 
possession of the material a crime because that was tantamount 
to making a thought crime. The Court said that rule did not 
apply later in the context of child pornography, where you 
could make the mere possession of the material a form of 
contraband. So we do know that there are times when we have 
interests of sufficiently high order to justify a narrowly 
drawn statute.
    The very last point I will make, Senator, is that although 
I think conceivably a narrowly drawn law could be crafted by 
Congress that would protect national security secrets with 
sufficient safeguards and tailoring and so on to not violate 
existing First Amendment doctrine, that does not mean it is a 
good idea. It does not mean it is wise public policy. And it 
certainly does not mean that we ought to interpret existing 
statutes as saying that, although some of the sections of 
existing law by their bland language would appear to encompass 
the mere possession or publishing of classified information.
    As has already been brought out powerfully in this hearing, 
that is not our tradition. There is very serious doubt that 
this Congress intended for that to be how those laws would be 
used, and we have not in the history of this Republic used them 
that way. And in light of that cultural experience, that 
societal understanding, and the serious First Amendment 
tensions that are created if we were to go there, the better 
interpretation of existing law is that it is too dangerous to 
interpret those statutes as if they empower the Government to 
prosecute journalists. And it would be bad public policy, in my 
view, Senator, if Congress were to attempt to clarify the law 
in a way that would empower the Government to go after 
journalists. Thank you.
    [The prepared statement of Mr. Smolla appears as a 
submission for the record.]
    Chairman Specter. We now turn to Dr. Gabriel Schoenfeld, 
Commentary Magazine senior editor, who has written on a wide 
variety of subjects--the Vietnam War, terrorism, nuclear 
proliferation, the cold war, anti-Semitism; published in the 
New York Times, the Wall Street Journal, the Washington Post, 
New Republic; appeared on many TV shows; a Ph.D. from Harvard's 
governmental department in 1989.
    Thank you very much for joining us, Dr. Schoenfeld, and we 
look forward to your testimony.

                         YORK, NEW YORK

    Mr. Schoenfeld. Thank you very much, Mr. Chairman. It is an 
honor to be invited here to testify today.
    As a journalist, I know firsthand the vital role played by 
a free press in our great country. Just this past week, two 
members of the media were killed and a third was critically 
injured while reporting on the war in Iraq. One cannot be 
indifferent to the risks that journalists are taking on a daily 
basis to bring us the information on which we depend to keep 
our society free and our debate open and well informed.
    But the tragedy that befell Kimberly Dozier and her crew 
also served to underscore the fact that our country is now at 
war. Thousands of our young men and women are in harm's way in 
distant locations around the world. And on September 11, 2001, 
as a result of a massive intelligence failure, we found that 
our own homeland was also in harm's way. Three thousand 
Americans paid for that intelligence failure with their lives.
    Obviously, many different factors contributed to that 
intelligence lapse. One of them is the subject of today's 
hearing, namely, leaks of classified information. The Jack 
Anderson archive affair is part of an issue with broad and 
urgent ramifications.
    The 9/11 Commission report stated that in 1998 a leak to 
the press led al Qaeda's senior leadership to stop using a 
particular communications channel, which made it much more 
difficult for our National Security Agency to intercept Osama 
bin Laden's conversations. Our Government's ability to gain 
insight into the plans of a deadly adversary were compromised 
by the actions of a leaker or leakers inside of Government and 
by journalists willing to publish what they had learned from 
those leakers, no matter what the cost to our National 
    The damage caused by that leak was not widely recognized at 
the time, and no action was taken against the leakers or the 
newspaper which first published the secret information. But the 
episode highlights the crucial importance of communications 
intelligence in the war on terrorism and the special 
vulnerability of this form of intelligence to disclosure.
    It was precisely because of that vulnerability that in 1950 
Congress added a very clear provision to the U.S. Criminal Code 
dealing specifically with communications intelligence. What is 
now known as Section 798 of Title 18 made it a crime to publish 
classified information pertaining to communications 
intelligence. I should add that that Act was passed in the 
aftermath of a press leak during World War II, in the Battle of 
Midway, when the Chicago Tribune had disclosed that our 
intelligence agencies had succeeded in breaking Japanese codes, 
which was a very serious leak that threatened the lives of 
thousands of American soldiers and threatened to prolong the 
    Now, Section 798 is free from all the ambiguities and 
constitutional problems that beset the 1917 Espionage Act. It 
was passed virtually without debate by Congress and won the 
approval at the time it was passed of, among other 
organizations, the American Society of Newspaper Editors.
    In the years since its passage, Section 798 has never been 
employed for the prosecution of a journalist. It is a law that 
was designed for special circumstances that are very dangerous 
but also very rare. Unfortunately, those special and rare 
circumstances appear to be upon us today.
    On September 11th, our country suffered a second and more 
terrible Pearl Harbor. Overnight, we were thrust into a new 
kind of war, a war in which intelligence is the most important 
front. It is also a war in which, if our intelligence fails us, 
we as an open society are uniquely vulnerable. If we are to 
defend ourselves successfully in this war and not fall victim 
to a third Pearl Harbor, perhaps a nuclear Pearl Harbor, it is 
imperative that our Government and our intelligence agencies 
preserve the ability to conduct counterterrorist operations in 
    I do not know what classified documents, if any, might be 
contained in Jack Anderson's archive. But from the press 
reports I have seen and from the testimony here today, they do 
not appear to be of recent vintage, and some of them might go 
back as far as the Korean War. Now, surely, if the FBI can 
demonstrate that there are documents in that archive the 
disclosure of which will damage national security or bear on 
criminal behavior, the FBI and the Justice Department have the 
statutory right to obtain a warrant to search and seize those 
documents. It probably would have enjoyed that right when 
Anderson was alive, and it certainly has them now that he is 
dead. Whether it should exercise that right today in the middle 
of the war on terrorism is another matter entirely. Unless 
facts come to light that alter our understanding of what is in 
that archive, the entire episode appears to be a misallocation 
of investigative resources. There are other leaks that have 
been far more damaging which the FBI is not pursuing with any 
seriousness at all, as best we can tell.
    Beginning last December 16th, the New York Times published 
a series of articles reporting that shortly after September 11, 
2001, President Bush had authorized the National Security 
Agency to intercept electronic communications between al Qaeda 
operatives and individuals inside the United States and 
providing details about how those interceptions were being 
    Now, the 9/11 Commission had identified the gap between our 
domestic and foreign intelligence-gathering capabilities as one 
of the primary weaknesses in protecting our country against 
terrorism. The NSA terrorist surveillance program aimed to 
cover that gap. The program, by the Times' own account of it, 
was one of our country's most closely guarded secrets in the 
war on terrorism.
    I am not privy to the workings of the program, but a broad 
range of Government officials have said that the program was 
vital to our security and that the New York Times disclosure 
inflicted critical damage on a crucial counterterrorism 
    Compounding the direct damage caused by the compromise of 
the NSA program is harm of a more general sort. In waging the 
war on terrorism, the U.S. depends heavily on cooperation with 
the intelligence agencies of allied countries. When our own 
intelligence services, including the NSA, the most secretive 
branch of all, demonstrate that they are unable to keep shared 
information under wraps, international cooperation dries up.
    According to Porter Goss, his intelligence agency 
counterparts in other countries informed him that our 
Government's inability to keep secrets had led some of them to 
reconsider their participation in some of our country's most 
important counterterrorism activities.
    If Americans are still wondering why our intelligence has 
been as defective as it has been, why it has been leading us 
from disaster to disaster, one of the reasons is unquestionably 
the hemorrhaging of classified information into the press.
    During the run-up to the Gulf War, the United States was 
urgently attempting to assess the state of play of Saddam 
Hussein's program to acquire weapons of mass destruction. One 
of the key sources of information suggesting an ambitious WMD 
program was under way was an Iraqi defector known by the code 
name of Curveball, who was talking to German intelligence. The 
U.S. remained in the dark about Curveball's true identity, yet 
if we had known who he was, we would have also known that he 
was a serial fabricator.
    But the reason why German intelligence would not tell us 
who Curveball was, as we learned from the Silberman-Robb WMD 
Commission report, that they refused ``to share crucial 
information with the United States because of fear of leaks.'' 
In other words, some of the blame for our mistaken intelligence 
about Iraq's WMD program rests with the leakers and with those 
in the media who rush to publish the leaks.
    Now, President Bush has called the disclosure of the NSA 
program, the terrorist surveillance program, by the Times a 
``shameful act.'' I have argued in the pages of Commentary that 
the decision to publish that story was also a crime, a 
violation of Section 798.
    Now, today Congress sets the laws by which we live in our 
democracy and oversees the way that they are carried out. If 
Congress, representing the American people, comes to believe 
that the executive branch is creating too many secrets or 
classifying things that should not be classified, it has ample 
powers to set things right by funding faster and better 
declassification and/or changing the declassification rules.
    But if, by contrast, a newspaper like the Times, a private 
institution, representing no one but itself, acts recklessly by 
publishing vital Government secrets in the middle of a perilous 
war, it should be prepared to accept the consequences as they 
have been set in law by the American people and its elected 
representatives. The First Amendment is not a suicide pact.
    Thank you very much for your attention, Mr. Chairman.
    [The prepared statement of Mr. Schoenfeld appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Dr. Schoenfeld.
    Our final witness on this panel is Mr. Mark Feldstein, 
Director of Journalism at George Washington University, 
Associate Professor of Media and Public Affairs at George 
Washington University; bachelor's degree from Harvard, a Ph.D. 
from University of North Carolina. In the 1970s he was an 
intern for columnist Jack Anderson. For nearly 20 years, he has 
been an on-air correspondent for virtually every news station--
CNN, ABC, NBC--and has a record as an investigative reporter, 
as his resume says, beaten up in the United States, detained 
and escorted by Government authorities in Egypt, and kicked out 
of Haiti.
    Quite a record, Mr. Feldstein.
    His book, ``Poisoning the Press: Richard Nixon, Jack 
Anderson, and the Rise of Washington's Scandal Culture,'' will 
be published next year.
    Thank you for joining us today, Mr. Feldstein, and the 
floor is yours.

                        WASHINGTON, D.C.

    Mr. Feldstein. Thank you, Senator. Let me just summarize my 
testimony, if I might, and ask that my full statement, with 
some news articles and editorials about the case, be entered 
into the record.
    Chairman Specter. Without objection, they will all be made 
a part of the record.
    Mr. Feldstein. Thank you.
    On March 3rd, two FBI agents showed up at my home. They 
flashed their badges and requested 25-year-old documents I had 
been going through for the book I am writing about Jack 
Anderson. The agents told me they were investigating violations 
of the Espionage Act going back to the early 1980s, even though 
they admitted the statute of limitations had expired. It seems 
the Justice Department wants to prosecute people who might have 
leaked secrets to a reporter decades ago, a reporter who is now 
dead. The agents tried to get me to say we have classified 
documents in our archives, even though I told them I do not 
know of any. They seemed to view reporters' notes as the first 
stop in their probe rather than the last step after all others 
failed--the standard they are supposed to use under Justice 
Department guidelines.
    Now, of course, the FBI is filled with thousands of brave 
men and women who do their jobs superbly and risk their lives 
for their country. But this case is troubling because 
whistleblowing sources, the kind Senator Grassley and other 
members of this Committee have championed, may be scared off if 
the Government starts rooting through reporters' notes, even 
past the grave.
    Last month, FBI Director Mueller promised this Committee he 
would find out what happened here, and I think the FBI still 
owes the Committee an answer. Perhaps the Justice Department's 
Inspector General should investigate.
    Unfortunately, this seems to be part of a larger effort to 
use national security to crack down on the public's right to 
know. We are even hearing proposals to prosecute journalists 
under the Espionage Act, a law passed during the hysteria of 
World War I and strengthened when Joe McCarthy began his witch 
hunt. Prosecuting the press for espionage reeks of McCarthyite 
madness, the kind of tactics used in dictatorships, not 
    Espionage? Reporters are not spies. They are patriotic. 
Every year, dozens of them give their lives trying to dig out 
the truth for the people. They are not perfect. Journalists 
make mistakes.
    They can be arrogant. They give too much attention to 
trivia and sensation. But history shows that genuine harm to 
national security caused by reporters has been minuscule to 
nonexistent. Far more damage to national security has been 
caused by Government secrecy and deceit than by media 
disclosures of classified information. If anything, the problem 
is not that the press is too aggressive in national security 
reporting. It is that it is too timid.
    Now, administrations often exaggerate the damage from 
reporting, invoking national security, when the real concern is 
political embarrassment. The fact is that leaks increase when 
Government abuses increase because whistleblowers turn to the 
press to get the truth out. This is healthy, a self-correcting 
mechanism in a democracy, and it is as old as the Republic 
    In 1796, a newspaper published verbatim excerpts of what 
George Washington told his Cabinet about secret negotiations 
with Britain. It created an uproar in international relations. 
Who leaked this National security secret? Thomas Jefferson, the 
Secretary of State then, was the No. 1 suspect.
    If you start prosecuting reporters for revealing secrets, 
journalists will stop telling the public about important 
national security misconduct. Either that, or the jails will 
fill up with reporters.
    Neither option is good. Merely threatening to prosecute the 
media by twisting the Espionage Act or some other law sends a 
chilling message. In the words of one journalist, the 
Government has ``already won...a victory that will bear fruit 
every day, whenever any reporter holds back for fear of getting 
into trouble, whenever a source fears to come forward lest he 
be exposed, whenever an editor `goes easy' for fear of 
government retaliation...whenever a citizen anywhere can be 
influenced to think of reporters as lawbreakers, the kind of 
people who have to be arrested.''
    The journalist who said those words was Jack Anderson, 
writing about the Nixon administration abuses during Watergate. 
Unfortunately, his words appear to be equally relevant today.
    Thank you.
    [The prepared statement of Mr. Feldstein appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Feldstein.
    We received a letter yesterday from Mr. Max Frankel, who 
submitted an affidavit 35 years ago in the Pentagon Papers 
case, and without objection, we will make part of the record 
Mr. Frankel's affidavit, and also his letter to the Committee 
dated yesterday, June 5th. And I will read one paragraph from 
the letter from Mr. Frankel.
    ``A review of the affidavit shows that, while all the names 
have changed, the way Washington works has not. Neither have 
the principles that should govern the relationship between 
Government and the press. Leaks of secrets and of classified 
information have been and continue to be routine. For a wide 
variety of reasons, they are essential to what I call the 
`cooperative, competitive, antagonistic, and arcane 
relationship' between Washington reporters and American 
officials. The press plays a vital role in educating the public 
through the use of so-called secret information, much of it 
intentionally disclosed by honorable Government servants. They 
may be floating trial balloons, sending messages to foreign 
governments, waging internecine battles against other 
governmental departments, illuminating or attacking 
governmental policies. Their motives are as numerous as their 
    Mr. Anderson, do you know if Federal authorities ever made 
a request to your father for any information or documents 
during his lifetime?
    Mr. Anderson. During the span of his lifetime, I am sure 
that there were some requests. I was asked by someone in the 
media who said that an FBI representative had told them that 
about a year before he died, they had made a request. I don't 
know whether that is true, but in following up on that--my 
father was pretty much bedridden during that year, 24-hour-a-
day care. I checked with the nurses and my sister who was 
tending him and my Mom, and none of them was familiar with any 
    Chairman Specter. So you know of no request?
    Mr. Anderson. That is correct. I do not.
    Chairman Specter. And, similarly, you know of no disclosure 
by your father of any of his documents.
    Mr. Anderson. That is correct. He would not have and did 
not, to my knowledge.
    Chairman Specter. And you testified that the FBI told you 
you could not review your father's papers?
    Mr. Anderson. That is what they said on several occasions, 
    Chairman Specter. Has the FBI gone to any compulsory 
process, subpoena, to obtain your father's papers?
    Mr. Anderson. Not at this point. I should add that they 
have, you know, repeatedly asked various people questions and 
have the necessary information to do that.
    Chairman Specter. Have you--and you do not have to answer 
this question. You do not have to answer any of these 
questions. You are not under subpoena. And if you were under 
subpoena, you would not necessarily have to answer the 
questions either if you claimed the privilege. But I will ask 
you: Have you reviewed any of your father's papers in the face 
of the FBI statement to you that you are not permitted to, 
authorized to?
    Mr. Anderson. I have not in the recent past. I have not 
seen really any of the papers since they were--some of them 
were boxed up 20 years ago.
    Chairman Specter. Aren't you interested in what they say?
    Mr. Anderson. A little bit, but to be frank with you, I 
have been too busy to get out there and do that. I would 
completely disregard the FBI's direction to me and review them 
at will, though.
    Chairman Specter. And how do you describe the volume? In 
boxes, you said?
    Mr. Anderson. There are 187 boxes.
    Chairman Specter. How big are the boxes?
    Mr. Anderson. They are what I call banker's boxes, you 
know, just a typical document storage box. I couldn't tell you 
how many thousands of papers. And then, in addition, there 
    Chairman Specter. A banker's box, about 2 feet, 2\1/2\ 
feet, by about a foot and a half?
    Mr. Anderson. Yes, that would be correct. And then there 
are 20 file drawers of small 3-x-5 cards that my Dad used to 
keep to index the columns that he wrote.
    Chairman Specter. Do you have any idea why the FBI, after 
making a request, has not pursued compulsory process, a 
    Mr. Anderson. I understand that they would have to go to 
the Department of Justice, and my guess is that the Department 
of Justice perhaps has a different view of the importance of 
the documents that might be in there.
    Chairman Specter. Now, you say that your father and Drew 
Pearson went through Director J. Edgar Hoover's trash?
    Mr. Anderson. Yes, that is correct. He did a series of 
articles about what they found in there, and, in fact, I think 
an ABC News crew videotaped one of Dad's reporters going 
through the trash.
    Chairman Specter. Do you know if--well, I will ask you the 
question. I think the answer is obvious. Do you know whether 
any of these many boxes contain information about Director 
Hoover's trash?
    Mr. Anderson. Well, I suspect they do because they have the 
information--they have copies of the columns that he wrote and 
some of Dad's notes related to that.
    Chairman Specter. Mr. Feldstein, Professor Feldstein, what, 
again, did the FBI ask you for with respect to Mr. Anderson's 
files, Mr. Jack Anderson's files?
    Mr. Feldstein. Well, they basically wanted to go through 
all of them.
    Chairman Specter. And what did you have?
    Mr. Feldstein. Well, my university has nearly 200 boxes 
that the Anderson family donated to the collection, to our 
    Chairman Specter. Are those papers of the university 
available for public inspection?
    Mr. Feldstein. No, sir, not yet. We, as all archives do, 
first get them and then try to raise the money, because it is 
expensive to catalogue them--it usually takes months or years--
segregate out anything the family or the donor wanted 
segregated, love letters, source notes, what have you, and then 
we make it--put it on display for the public.
    Chairman Specter. And is it the intention of your 
university 1 day to make those records available to the public 
after being screened as you describe?
    Mr. Feldstein. Yes, sir.
    Chairman Specter. What do you think would be the 
consequence on other reporters if you were to give the FBI 
access to Mr. Jack Anderson's files that you have in possession 
of your university? Mr. Feldstein. Well, I think it would be 
troubling for both journalists and academics. For journalists, 
the concern would be that their source notes, confidential 
sources, would be revealed to law enforcement authorities and 
that that would produce a chilling effect, making other 
whistleblowers reluctant to come forward out of fear that their 
identities would later become known. For academics, historians 
are always very concerned about trying to keep historical 
archives in order and not have them rifled through, because 
often the order matters, and also may discourage people from 
donating their papers in the future, not just at our university 
but everywhere, if--
    Chairman Specter. You think it would have a chilling 
    Mr. Feldstein. Yes, sir.
    Chairman Specter. A serious chilling effect? Mr. Feldstein. 
Well, how serious depends on, I suppose, how bad the rifling is 
that takes place and how much is confiscated. One of the 
problems is the FBI agents did make clear that they would be 
duty bound to pull out stuff that they felt should not be in 
    Chairman Specter. You and your university are preserving 
these papers so that if the FBI should ever assert a compulsory 
process and have that upheld by the courts, they would be 
available to the FBI?
    Mr. Feldstein. Well, I can't speak for the university or 
for the Anderson family, but, yes, we are preserving it and, 
you know, we certainly believe in abiding by the law. And we 
are all good citizens, too, and we don't want anything to 
jeopardize national security. You know, my own concern here is, 
frankly, I am a little skeptical that anything that old and 
that long ago really is about national security.
    Chairman Specter. Mr. Anderson, a similar question to you. 
If the FBI ultimately prevails with a subpoena compulsory 
process, will the records be available for them to see if they 
are upheld in court?
    Mr. Anderson. Not at this point in time. The family has met 
and decided that we would not abide by a subpoena if one were 
issued by the FBI, and we would give that instruction to the 
George Washington University.
    Chairman Specter. Well, if the subpoena was upheld by the 
highest court in the country, would you risk a contempt 
citation rather than make the records available?
    Mr. Anderson. I would, and I have spoken with my mother, 
and she would as well.
    Chairman Specter. Well, we will not ask you for a final 
judgment on that today. We are far from that. But it is not an 
irrelevant question.
    Well, Dr. Schoenfeld and Professor Smolla, you pose about 
as sharp a conflict as you can find on this issue. Dr. 
Schoenfeld wants to prosecute the New York Times and Mr. Risen, 
and Professor Smolla does not even want us to examine the 
question as to what standards would be appropriate for 
prosecution under 798, because that would be an invitation.
    You have it on the books. You have heard, Dean Smolla, the 
testimony of a representative of the Department of Justice that 
the Department concludes as a legal matter that the Department 
has the authority to prosecute. Do you think that there are no 
circumstances, there is no conceivable circumstance under which 
a prosecution by the Federal Government of a newspaper or a 
newspaper reporter would be justified?
    Mr. Smolla. Well, Senator, let me divide it into the 
statutory question and the First Amendment question. I think it 
is very implausible that Section 798 was thought of by Congress 
when it passed that law in 1950 as overturning decades of 
cultural understanding that we had before this law was passed 
and that we have observed since. And it is implausible that 
Congress had in mind upsetting the traditional First Amendment 
balance that has existed.
    You would have to believe that Members of Congress imagined 
that there could be, for example, an illegal or 
unconstitutional communications interception program. It is 
conceivable that the executive branch could illegally be 
intercepting people's communications and that Congress meant to 
say that all the executive branch needs to do is say the 
existence of the program is classified, the very fact we are 
doing it is a secret; and if that is revealed and the reporter 
finds out about it, the reporter can be criminally prosecuted 
for exposing that.
    That is a very improbable understanding of what Congress 
thought it was doing when it passed this law, and--
    Chairman Specter. But is Dr. Schoenfeld wrong that the 
statute was passed as a reaction to the disclosure by a 
newspaper that the Japanese code had been broken?
    Mr. Smolla. Well, you know, that episode took place 8 years 
before. As Dr. Schoenfeld has conceded, there is very little 
legislative history surrounding the passage of the Act. And 
there may be a qualitative difference between the kind of 
communication that reveals, in fact, how we are intercepting 
material, that reveals that a code has been broken, that kind 
of hard national security data where you can instantly see this 
would damage the national security of the United States if this 
is released, and the kind of leaks that are now being talked 
about, which are leaks about massive programs that don't reveal 
any technical secrets--the New York Times didn't explain 
exactly how these things were intercepted--don't even reveal 
the content of it. All they do is tell you that it is done 
without a warrant.
    Chairman Specter. Well, yes, but are you saying that there 
is no conceivable circumstance which would justify prosecuting 
a newspaper or a reporter?
    Mr. Smolla. No, I am not, and I am conceding that the First 
Amendment standard itself contemplates that there could be 
national security interests of the highest order and that a 
narrowly tailored statute in which the Congressional intent was 
clear and in which defense safeguards are built in, safeguards 
that require that there be proof that some ongoing or live 
    Chairman Specter. Have you had a chance to review the 
Lugar-Specter bill?
    Mr. Smolla. I think it is generally going in the right 
direction, Senator. We certainly should have a shield law.
    Chairman Specter. Never mind going in the right direction.
    Chairman Specter. Would you support it? Mr. Smolla. I think 
that the critical thing would be--and you alluded to this, Mr. 
Chairman--how broad or how narrow the national security 
exception is. But I absolutely support the idea that that 
should be the kind of thing placed in the hands of the neutral 
    Chairman Specter. Well, since you haven't said yes, would 
you give us suggestions as to how to--
    Mr. Smolla. I would be happy to do that. I would be happy 
to do that, Senator, but I think--
    Chairman Specter. How to perfect it so that you would 
support it?
    Mr. Smolla. I would be happy to be invited, in fact, to do 
that, Senator.
    Chairman Specter. Dr. Schoenfeld, what is your thinking or 
the basis for your conclusion that Congressional intent on 798 
was to cover a situation like the publication by the New York 
Times and Mr. Risen of the surveillance program?
    Mr. Schoenfeld. I can't imagine a set of circumstances that 
more closely fit the intention of the Congress that passed that 
Act. Just looking at the plain language of the law, it is 
unambiguous. The provision says, ``Disclosure of classified 
information. (a) Whoever knowingly and willfully communicates, 
furnishes, transmits, or otherwise makes available to any 
unauthorized person, or publishes, or uses in any manner 
prejudicial to the safety or interests of the United States or 
for the benefit of any foreign government to the detriment of 
the United States any classified information (3) concerning the 
communication...activities of the United States...''
    Chairman Specter. You testified that it was your thinking 
that the disclosure of the breaking of the Japanese code, which 
put many American lives at issue, at stake, was at least in 
part responsible for the statute?
    Mr. Schoenfeld. Well, there was a joint Committee right 
after the war, in 1945, I believe, that made a series of 
recommendations to the Congress about tightening security in 
the interest of avoiding another Pearl Harbor, and this joint 
Committee had made reference to the 1943 Midway Chicago Tribune 
case. So when Congress revisited these laws in 1950, it was 
taking cognizance of the joint committee's recommendations, and 
it explicitly rejected the joint committee's recommendation 
that there be very blanket secrecy rules put in effect, and it 
carved out this one very narrow area of communications 
intelligence for special protection. It didn't want to impose a 
blanket secrecy rule, and the newspaper industry at the time--
the New York Times, which was an active member in the American 
Society of Newspaper Editors--endorsed the passage of this law.
    Chairman Specter. Well, I know that the law was endorsed by 
the American Society of Newspaper Editors, but that could cut 
both ways. It could cut that they endorsed it because they 
thought they were not being prosecuted. Why do you think that 
their endorsement--
    Mr. Schoenfeld. I think the journalists--
    Chairman Specter. Excuse me.
    Mr. Schoenfeld. Sorry.
    Chairman Specter. Let me finish the question.
    Mr. Schoenfeld. I am sorry.
    Chairman Specter. What was the basis for your thinking that 
their endorsement was a recognition that there were some 
circumstances where it would be appropriate to prosecute a 
newspaper and a reporter?
    Mr. Schoenfeld. I can only conjecture, Senator, but I would 
think that in the climate of those years, journalists would 
have thought it inconceivable, except for a few perhaps on the 
fringes, that there would be journalists who would be eager to 
publish vital Government secrets in this area, especially in 
light of the experience in World War II and then in the early 
days of the cold war facing a nuclear-armed U.S.S.R.
    Chairman Specter. Dr. Schoenfeld, what weight, if any, 
would you give to the fact that there has never been a 
prosecution under 798?
    Mr. Schoenfeld. I think that should be given some weight. 
Prosecutions of journalists in our country have been 
unprecedented, and I think that is a good thing, obviously. 
    Chairman Specter. Prosecutions of journalists 
    Mr. Schoenfeld. Well, not unprecedented, but very rare.
    Chairman Specter. Don't tell Judith Miller that.
    Mr. Schoenfeld. They are rare. Well, she wasn't prosecuted. 
She was held in contempt. But they have been historically very 
rare, and that is as it should be. That is right and proper. 
However, I think the New York Times crossed a line here. I 
would distinguish it also from other recent leak cases. For 
example, Dana Priest, a Washington Post reporter, who wrote 
about clandestine prisons in Eastern Europe, is probably not an 
easy target for prosecution. It seems to me that Section 798 is 
not implicated, and you are already into the very murky 
territory of the Espionage Act, and there I think the courts 
might as well find constitutional objection to prosecution for 
that kind of leak.
    Chairman Specter. Coming back to the Judith Miller case, 
which started off as a national security case on the identity 
of the CIA agent, and then shifted to an inquiry into whether 
there had been obstruction of justice or perjury, do you think 
that there is an adequate basis for jailing a reporter when you 
do not have a national security interest in issue?
    Mr. Schoenfeld. Well, since Branzburg, the courts have 
ruled that journalists are obliged to testify about what they 
know regarding criminal matters, so clearly there is no 
protection now for journalists. And I think that the--I read 
the testimony of the Justice Department officials before your 
Committee about the shield law, and I found it very compelling. 
I oppose the legislation--that I have seen, in any case--that 
was commented on by the Justice Department.
    Chairman Specter. Have you had a chance to review the 
Lugar-Specter bill?
    Mr. Schoenfeld. I am not sure that I have. I reviewed what 
was testified to by a Justice Department official by the name 
of Chuck Rosenberg, I believe, and not further.
    Chairman Specter. Dr. Schoenfeld, you testified that if the 
Congress thinks the administration is overclassifying, Congress 
can change that. What do you do in a situation where the 
Congress does not know what is being classified? You have the 
electronic surveillance matter, which you testified about, 
disclosed in the New York Times on December 16th. The 
administration had only informed the so-called Gang of Eight--
the leaders of both Houses and the Chairman and Ranking Member 
of both Houses--which had been a tradition. It did not comply 
with the law. As you know, the National Security Act of 1947 
requires that the Intelligence Committees of both Houses be 
    In the 104th Congress, I was a member of the Gang of Eight 
as Chairman of the Intelligence Committee. I do not think they 
told us much. They did not tell the Gang of Eight much from 
what I saw. But, obviously, informing the Gang of Eight was not 
in compliance with the law. Then after the New York Times 
disclosure and certain activities undertaken by this Committee, 
the administration was willing to tell a Subcommittee of the 
Senate Intelligence Committee, 7 of the 15 members. And then 
the House of Representatives initially declined to have a 
Subcommittee told on the ground that that did not comply with 
the statute. But then they finally accepted a Subcommittee of 
    And then on the eve of the confirmation hearings of General 
Hayden, the administration decided to comply with the law. So 
now you have the two Intelligence Committees informed. But the 
Judiciary Committee, which has the oversight responsibility on 
constitutionality, is not informed, nor is the Chairman and the 
Ranking Member, which is what the administration sometimes does 
when it does not want to inform a full committee.
    Now, so you have 15 of 100 Senators informed, and you have 
a small percentage of the House informed, the Intelligence 
Committees. So how can Congress act to change the 
classification when Congress cannot find out what is being 
    Mr. Schoenfeld. Well, it appears to me, Senator, that there 
is a genuine clash here between the branches; however, within 
Congress itself, there does not seem to be an overriding clamor 
to change the way that Congress is being informed. In fact--
    Chairman Specter. Do you think the absence of an 
overwhelming clamor in Congress means anything?
    Mr. Schoenfeld. Well, I think it does.
    Mr. Schoenfeld. Yes, Senator, I think it does. Congress 
operates by majorities, and there is not clearly not a majority 
in Congress that is pushing hard to change the way that the 
Judiciary Committee is informed about executive branch 
    Chairman Specter. Let me interrupt you just long enough to 
state my agreement with you on that.
    Mr. Schoenfeld. I am sorry. Could you repeat that, Senator?
    Chairman Specter. No.
    Chairman Specter. I agree with you that there is not an 
overwhelming clamor by Congress, but I would not say that means 
a whole hell of a lot, if I may use that expression publicly. 
But you are right, there is not a clamor. There is not a 
clamor. But where you have a program which violates the Foreign 
Intelligence Surveillance Act, which prohibits any electronic 
surveillance without a warrant issued by that court, and you 
have the interposition by the Government of Article II powers, 
inherent power, which trumps a statute, admittedly, but you 
can't make a determination as to whether there is a legitimate 
exercise of Article II power because it is a balancing test--
the President does not have a blank check. It is a balancing 
test. And you can't balance if you don't know what there is 
involved. What does Congress do? We could pass another law, but 
that one could be ignored, too, under the trumping doctrine. So 
what does Congress do?
    Mr. Schoenfeld. Well, I think in this kind of clash, 
ultimately it is going to be decided as a political question. 
If the voters are unhappy with the way that the administration 
is treating Congress or unhappy with the way Congress is 
asserting its authority, presumably they will let our elected 
officials know in the next election. But my sense is that the 
voters are not unhappy--
    Chairman Specter. Wait a minute--
    Mr. Schoenfeld. May I finish my statement? General Hayden, 
who was overseeing this so-called illegal program, and 
according to some who I have heard argue that he is a criminal 
for doing so, was just confirmed by a vote of 78-15 as CIA 
Director. So it suggests to me that there is quite a bit of 
opinion inside of Congress, and the Senate in particular, that 
does not regard this as an illegal program. That kind of vote 
is overwhelming.
    Chairman Specter. Well, I don't think anybody ever 
suggested that anybody was a criminal. To be a criminal, you 
have to have criminal intent, and no one has challenged General 
Hayden's good faith and the good faith of anybody in the 
administration in thinking that there are Article II powers. 
But if the voters decide that the Congress ought to be thrown 
out and a new Congress put in and Congress passes another law, 
the President can ignore that as well. We can throw out all the 
House of Representatives in November, throw out enough Senators 
to make an impression, but come back and pass another law. If 
you don't know what Article II powers are being imposed to 
evaluate whether they are being trumped are not, you cannot 
    Dr. Schoenfeld, what do you think of the bill which would 
give to the Foreign Intelligence Surveillance Court--we had 
four former Foreign Intelligence Surveillance judges at this 
witness stand, and they examined the legislative proposal which 
would give to the FISA Court the program to determine 
constitutionality in accordance with the generalized approach 
that there has to be a judicial determination of 
constitutionality. They have a record for maintaining secrecy, 
and they have the expertise. What would you think of giving it 
to them to determine constitutionality?
    Mr. Schoenfeld. I think that is a perfectly reasonable 
suggestion, and I am surprised the administration hasn't moved 
with it. But it seems to me a plausible way to resolve this 
    Chairman Specter. Well, the administration has not even 
said no, so we are not sure what their attitude is. But they 
have been asked many times, and we intend to continue to ask 
them more.
    Would you be able to answer some questions that we want to 
submit in writing, Dean Smolla?
    Mr. Smolla. Absolutely, Senator.
    Chairman Specter. Dr. Schoenfeld?
    Mr. Schoenfeld. I will do my best.
    Chairman Specter. Mr. Anderson?
    Mr. Anderson. Yes, Senator.
    Chairman Specter. Professor Feldstein?
    Mr. Feldstein. Yes.
    Chairman Specter. There are a lot of good questions which 
have been prepared by staff, and I think we have gone about as 
far as we can go here on the discussion.
    In addition to suggestions, Dean Smolla, on the Lugar-
Specter bill, if you have any suggestions on 798, I would be 
interested in them.
    Mr. Smolla. I would be happy to supply them, Senator.
    Chairman Specter. It may be that Congress ought to leave 
that alone. Let me ask you, Professor Feldstein, do you think 
Congress ought to pick up 798 in view of what the Attorney 
General says, or perhaps more importantly, what Dr. Schoenfeld 
says and provide some standards for prosecuting newspapers and 
    Mr. Feldstein. Well, I am not an expert in this area, and I 
am not an attorney.
    Chairman Specter. If you are not an expert, Professor 
Feldstein, tell me who is.
    Mr. Feldstein. Well, maybe the Reporters Committee for 
Freedom of the Press, some press groups like that. You know, it 
used to be that reporters felt the First Amendment gave them 
enough protection. To me, the idea of prosecuting journalists 
under the Espionage Act is outlandish. If I thought there was 
serious impetus to do that, then perhaps a legislative remedy 
would be a good thing to head that off.
    Chairman Specter. Don't you think there is an issue as to 
whether there is a serious intent to use these statutes for 
criminal prosecution?
    Mr. Feldstein. Well, I fear, based on developments 
recently, that that is the case, and I think that if Congress 
were able to narrow that in, that would be excellent. I would 
fear, if Congress tried and failed, that that might be 
inadvertently interpreted as a green light.
    Chairman Specter. Why inadvertently interpreted? That would 
be advertently interpreted.
    Mr. Feldstein. OK. Fair enough.
    Chairman Specter. Mr. Anderson, do you think we ought to 
try to set standards for utilization of 798?
    Mr. Anderson. I am pretty sure that Dad would have thought 
that the First Amendment was the only standard that was needed. 
I am pretty sure that it would have been the only standard that 
he would have honored. I probably am more inclined to agree 
with Dr. Feldstein that when you start to meddle, it becomes 
very difficult.
    I have not seen and I have not heard discussed today, 
including the New York Times case, anything that I would 
consider even bordering on espionage or activities by reporters 
that were designed to hurt the national security of this 
country. But for those reports, we would not even be having 
this discussion.
    Chairman Specter. Dr. Schoenfeld, do you think we ought to 
try to provide some Congressional standards for 798?
    Mr. Schoenfeld. Well, 798 appears to me to be rather 
unambiguous. That is one of the interesting features about that 
law, as compared to Section 793 and the Espionage Act, which we 
are not talking about here today. I am talking about Section 
798, which is an entirely different statute.
    Section 793 and Section 794 are riddled with ambiguities. 
In the words of Harold Edgar and Benno Schmidt, who wrote an 
exhaustive and very brilliant study of them, those statutes 
are, in their words, ``incomprehensible'' and there would be 
good reason to review them. However, the benign indeterminacy 
that those statutes have created have also served us well over 
the years. Perhaps that indeterminate, ambiguous understanding 
of the law is now eroding in the face of more aggressive press 
willingness to publish secrets, and perhaps there might be some 
reason to revisit those statutes as well.
    Chairman Specter. Dean Smolla, you have already said you 
are unwilling to tamper with it. Do you stand by that?
    Mr. Smolla. Except to clarify it is not supposed to be 
used. I wouldn't encourage Congress to make it easier to 
prosecute journalists. If there was any clarification, it would 
be to clarify that it was never intended to reach that.
    Chairman Specter. I would be interested in the specifics if 
you have some language. I would be interested in the specifics 
if anybody has some language on that subject.
    Thank you very much, gentlemen. We are going to give you 
the written questions because they are profound questions the 
staff has prepared. Thank you all.
    [Whereupon, at 12 noon, the Committee was adjourned.]
    [Questions and answers and submissions for the record