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                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             SECOND SESSION


                           DECEMBER 16, 2010


                           Serial No. 111-160


         Printed for the use of the Committee on the Judiciary

      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel

                            C O N T E N T S


                           DECEMBER 16, 2010


                           OPENING STATEMENTS

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     1
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Member, Committee on the Judiciary.....     3
The Honorable William D. Delahunt, a Representative in Congress 
  from the State of Massachusetts, and Member, Committee on the 
  Judiciary......................................................     4
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Member, Committee on the Judiciary     5
The Honorable Charles A. Gonzalez, a Representative in Congress 
  from the State of Texas, and Member, Committee on the Judiciary     5
The Honorable Ted Poe, a Representative in Congress from the 
  State of Texas, and Member, Committee on the Judiciary.........     5


Mr. Geoffrey R. Stone, Professor and former Dean, University of 
  Chicago Law School
  Oral Testimony.................................................     6
  Prepared Statement.............................................     9
Mr. Abbe David Lowell, Partner, McDermott Will & Emery, LLP
  Oral Testimony.................................................    22
  Prepared Statement.............................................    25
Mr. Kenneth L. Wainstein, Partner, O'Melveny & Myers, LLP
  Oral Testimony.................................................    39
  Prepared Statement.............................................    41
Mr. Gabriel Schoenfeld, Ph.D., Senior Fellow, Hudson Institute
  Oral Testimony.................................................    48
  Prepared Statement.............................................    50
Mr. Stephen I. Vladeck, Professor of Law, American University
  Oral Testimony.................................................    66
  Prepared Statement.............................................    69
Mr. Thomas S. Blanton, Director, National Security Archive, 
  George Washington University
  Oral Testimony.................................................    74
  Prepared Statement.............................................    77
Mr. Ralph Nader, Legal Advocate and Author
  Oral Testimony.................................................    87



                      THURSDAY, DECEMBER 16, 2010

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Committee met, pursuant to notice, at 10:05 a.m., in 
room 2141, Rayburn House Office Building, the Honorable John 
Conyers, Jr. (Chairman of the Committee) presiding.
    Present: Representatives Conyers, Scott, Jackson Lee, 
Delahunt, Johnson, Quigley, Gutierrez, Schiff, Sensenbrenner, 
Coble, Gallegly, Goodlatte, King, Frank, Gohmert, Poe, and 
    Staff Present: (Majority) Perry Apelbaum, Staff Director 
and Chief Counsel; Elliot Mincberg, Counsel; Sam Sokol, 
Counsel; Joe Graupensberger, Counsel; Nafees Syed, Staff 
Assistant; (Minority) Caroline Lynch, Counsel; Kimani Little, 
Counsel; and Kelsey Whitlock, Clerk.
    Mr. Conyers. Good morning. The hearing on the Espionage 
case and the legal and constitutional issues raised by 
WikiLeaks before the Committee on Judiciary is now about to 
take place. We welcome everyone here to the hearing. In the 
Texas v. Johnson case in 1989, the Supreme Court set forth one 
of the fundamental principles of our democracy. That is, that 
if there is a bedrock principle underlying the First Amendment, 
it is that the government may not prohibit the expression of an 
idea simply because society finds the idea itself offensive or 
    That was Justice William Brennan. Today the Committee will 
consider the WikiLeaks matter. The case is complicated, 
obviously. It involves possible questions of national security, 
and no doubt important subjects of international relations, and 
war and peace. But fundamentally, the Brennan observation 
should be instructive.
    As an initial matter, there is no doubt that WikiLeaks is 
in an unpopular position right now. Many feel their publication 
was offensive. But unpopularity is not a crime, and publishing 
offensive information isn't either. And the repeated calls from 
Members of Congress, the government, journalists, and other 
experts crying out for criminal prosecutions or other extreme 
measures cause me some consternation.
    Indeed, when everyone in this town is joined together 
calling for someone's head, it is a pretty sure sign that we 
might want to slow down and take a closer look. And that is why 
it was so encouraging to hear the former Office of Legal 
Counsel, Jack Goldsmith, who served under George W. Bush 
caution us only last week. And he said, I find myself agreeing 
with those who think Assange is being unduly vilified. I 
certainly do not support or like his disclosure of secrets that 
harm U.S. national security or foreign policy interests. But as 
all the handwringing over the 1917 Espionage Act shows, it is 
not obvious what law he has violated.
    Our country was founded on the belief that speech is 
sacrosanct, and that the answer to bad speech is not censorship 
or prosecution, but more speech. And so whatever one thinks 
about this controversy, it is clear that prosecuting WikiLeaks 
would raise the most fundamental questions about freedom of 
speech about who is a journalist and about what the public can 
know about the actions of their own government.
    Indeed, while there's agreement that sometimes secrecy is 
necessary, the real problem today is not too little secrecy, 
but too much secrecy. Recall the Pentagon papers case, Justice 
Potter Stewart put it, when everything is classified, nothing 
is classified. Rampant overclassification in the U.S. system 
means that thousands of soldiers, analysts and intelligence 
officers need access to huge volumes of purportedly classified 
material. And that necessary access in turn makes it impossible 
to effectively protect truly vital secrets.
    One of our panelists here today put it perfectly in a 
recent appearance. He explained, our problem with our security 
system, and why Bradley Manning can get his hands on all these 
cables, is we got low fences around a vast prairie because the 
government classifies just about everything. What we really 
need are high fences around a small graveyard of what is really 
sensitive. Furthermore, we are too quick to accept government 
claims that risk the national security and far too quick to 
forget the enormous value of some national security leaks. As 
to the harm caused by these releases most will agree with the 
Defense Secretary, Bob Gates, his assessment.
    Now, I have heard the impact of these releases on our 
foreign policy described as a meltdown, as a game changer, and 
so on. I think those descriptions are fairly significantly 
overwrought. And Mr. Gates continues, is this embarrassing? 
Yes. Is it awkward? Yes. Consequences for U.S. policy? I think 
fairly modest.
    So the harm here, according to our Republican Defense 
Secretary, is fairly modest. Among the other side of the 
ledger, there is no need to go all the way back to the Pentagon 
papers to find examples of national security leaks that were 
critical to stopping government abuses and preserving a healthy 
democracy. They happen all the time.
    In 2005, The New York Times published critical information 
about widespread domestic surveillance. Ultimately, we learned 
of a governmental crisis that included threats of mass 
resignations at the Justice Department and outrageous efforts 
to coerce a sick attorney general into approving illegal spying 
over the objections of his deputy and legal counsel's office. 
If not for this leak, we would have never learned what a civil 
libertarian John Ashcroft is.
    In 2004, the leak of a secret office of legal counsel 
interrogation memos led to broader revelations of the CIA's 
brutal enhanced interrogation programs at Black sites. These 
memos had not been previously revealed to the Judiciary 
Committee or to many in Congress. Some feel this harmed 
national security. But to many Americans, the harm was a secret 
program of waterboarding and other abuses that might never have 
been ended but for the leak.
    And so we want to, as the one Committee in the Congress 
that I have a great and high regard for, take a closer look at 
the issues and consider what, if any, changes in the law might 
be necessary. And I want to welcome this very distinguished 
panel. I have read late into the night, and I was awake most of 
the time when I was reading this, some really great testimony. 
And I am so glad that you are all here with us. I would like 
now to recognize my friend and Ranking Member, Judge Louie 
    Mr. Gohmert. Thank you, Chairman. And I do appreciate the 
witnesses here. Before I begin my actual statement, let me just 
say I appreciate, and am also intrigued by your metaphorical 
use of the need for high fences around a small graveyard. But I 
am curious, are you saying this Administration is located in a 
small graveyard? Is that the point?
    Mr. Conyers. See me after the hearing, please, Judge 
    Mr. Gohmert. Thank you, Chairman. And I appreciate the 
Ranking Member Smith asking me to stand in. But the release 
last month by WikiLeaks of over 250,000 classified and 
diplomatic U.S. documents threatens our national security, our 
relations with foreign governments, and continued candor from 
embassy officials and foreign sources. Many have applauded the 
Web site and its founder, Julian Assange, as a hero advocating 
the continued release of classified and sensitive government 
documents. But to do so is both naive and dangerous. Web sites 
such as WikiLeaks and the news publications that reprint these 
materials claim to promote increased government transparency.
    But the real motivation is self-promotion and increased 
circulation to a large extent. They claim to be in pursuit of 
uncovering government wrongdoing but dismiss any criticism that 
their actions may be wrong or damaging to the country. As long 
as there have been governments, there have been information 
protected by those governments. There have clearly been 
documents classified that should not have been classified. 
While there is legitimate dispute over the extent to which 
information is protected and classified, it is simply 
unrealistic to think that the protection of information serves 
no legitimate purpose.
    Much attention has been given to this most recent WikiLeaks 
release. Many dismiss that any negative repercussions resulted 
from the leak arguing that the documents, while embarrassing to 
the U.S., did no real harm to the country. But what about 
previous leaks by this Web site? On July 25, 2010, WikiLeaks 
released confidential military field reports on the war in 
Afghanistan. This site released Iraq war-related documents on 
October 23, 2010. Both of these leaks reveal sensitive military 
information that endanger military troops and may have 
bolstered our enemy's campaigns against us.
    Last month's WikiLeaks release has thrust in the spotlight 
an old, some would even say, arcane statute, the Espionage Act 
of 1917. It has also resurrected an age-old debate on First 
Amendment protections afforded to media publications.
    But today we are confronted with a new kind of media, the 
Internet blog. What are the boundaries of free speech, how do 
we balance this freedom with the Government's need to protect 
some information. The drafters of the 1917 Act could not have 
foreseen that nearly 100 years later, sensitive information 
could have been transmitted to a global audience 
instantaneously. America's counterterrorism efforts must 
respond to new and emerging threats such as home-grown 
terrorism. Our criminal laws must also keep pace with advancing 
technologies that enable widespread dissemination of protected 
information. This time the leak involved primarily diplomatic 
cables, but previous leaks disclosed even more sensitive 
    And the next leak could be even more damaging. It could 
disclose accordinance of where military personnel are located 
overseas or even reveal the next unannounced visit to Iraq or 
Afghanistan by President Obama. This isn't simply about keeping 
government secrets secret, it is about the safety of American 
personnel overseas at all levels from the foot soldier to the 
    With that, Mr. Chairman, I yield back.
    Mr. Conyers. Thank you, Judge Gohmert. This may be the last 
time that we have an opportunity to recognize our good friend, 
Bill Delahunt of Massachusetts. He has served the Committee in 
a very important way, and we yield to him at this time.
    Mr. Delahunt. Well, thank you, Mr. Chairman. You know, as 
you are aware, I also serve on the Foreign Affairs Committee. 
And during that service, I had the opportunity to Chair the 
Committee on Oversight. And I must say, and this is true of 
both the Bush and the Obama administrations, it was difficult 
for me in that capacity, and it was difficult for the Chair of 
the full Committee, to secure information from the executive. I 
would submit that this particular hearing should be viewed in a 
much larger context. Leaks that obviously put people at risk, 
that put the United States at risk and methods, et cetera, 
there has to be parameters.
    But I think we are at a moment in our history where there 
is an overwhelming overclassification of material. And I think 
that we, in our role as Members of the first branch of 
government, ought to examine very, very carefully that the 
classification procedures. When you inquire of any executive 
agency and pose the very simple question, well, why is it 
classified? It is extremely difficult to get a direct and clear 
answer. Who does the classification? Is it the Secretary of 
State or the Attorney General? Who does the classification? 
During the course of my service, I discovered it was some low-
level bureaucrat.
    And the process itself is arcane, and there is no 
accountability, I dare say, in the classification processes 
that exist within the executive branch. And that is very 
dangerous, because secrecy is the trademark of totalitarianism. 
To the contrary, transparency and openness is what democracy is 
about. So while there is a focus now on the issue of WikiLeaks, 
I think it provides an opportunity for this Committee, and I 
think this is a concern that is shared by both Republicans and 
Democrats, about the classification process itself. There is 
far too much secrecy and overclassification within the 
executive branch, and I think it puts American democracy at 
risk. And with that I yield back.
    Mr. Conyers. Thank you, Bill. I am pleased now to turn to 
Howard Coble of North Carolina, a senior Member, who will soon 
be Chair of at least one Subcommittee, maybe two, we don't know 
    Mr. Coble. Mr. Chairman, you are more optimistic than I am, 
but I appreciate that. I have no detailed statement. I want to 
associate my remarks--yield my remarks regarding the gentleman 
from Massachusetts. He will indeed be missed on this Committee. 
This is a crucial issue as known to all of us. And not unlike 
many crucial issues, and perhaps most crucial issues, it is 
laced very generously with complications. Good to have the 
panel with us. And, Mr. Chairman, I yield back.
    Mr. Conyers. Judge, would you care to make an opening 
    Mr. Gonzalez. Mr. Chairman, I do not have any opening 
comments regarding the testimony and such, just looking forward 
to it. But I do want to just say good-bye to Bill. Obviously, 
of the Massachusetts delegation, he is the one Member that I 
can clearly understand despite that accent of theirs. But 
truly, he has been a good friend, and again, just such a 
valuable Member to the House, and he will be missed. But I am 
hoping that, of course, he made the decision because he is 
moving on to something that is going to be even more rewarding 
than what he has done here in Congress. Again, thank you very 
much, Mr. Chairman, for the opportunity. I yield back.
    Mr. Conyers. Thank you, Judge Gonzalez. Judge Ted Poe, I 
would recognize you at this time, sir.
    Mr. Poe. Thank you, Mr. Chairman. I ditto what has been 
said about Bill Delahunt, a wonderful Member of this Committee, 
hate to see him go, although we disagreed probably on 
    A couple comments about this situation. I see two issues. 
One issue is we got to find the original leak and what caused 
it, who did it and hold them accountable. The other issues that 
this brings forth is the fact that after 9/11, the big talk was 
we need to share information with different agencies in the 
United States Government because we don't know what one agency 
is doing or knows that should be shared. And so now we have 
mass sharing and now we seem like we are going to move away 
from that because of this situation.
    I have no sympathy for the alleged thief in this situation. 
He is no better than a Texas pawnshop dealer that deals in 
stolen merchandise and sells it to the highest bidder, but he 
is doing it for political gain. He should be held accountable. 
But, on the other hand, I am very concerned about our own 
overclassification of information. The easiest way for a 
government agency to take information is to say, it is 
classified, only special folks get to know what is in it. And I 
have been to a lot of classified briefings. And frankly, I have 
read a lot of that in the newspaper before that meeting ever 
took place, and it wasn't classified. Somebody just decides to 
make it classified and then you have that whole problem of 
overclassification of documents.
    And lastly, the security of our information is important. 
And we have to--those who allowed this to occur by 
incompetence, negligence, or whatever, we have to fix that 
problem. I am very concerned about that because of the fact 
that, you know, I suppose we are the greatest and most powerful 
Nation that ever existed, and we need to ratchet up our 
security to keep hackers from getting into it, and why did this 
occur and who allowed it to occur and what went wrong to make 
this situation now go worldwide?
    It is like a bunch of folks at a bank decide to hold a 
Christmas party down the street and they all take off and leave 
the vault open. You know, there is a security problem with that 
kind of thing. And so I would hope that we would fix the 
security problem, find out what occurred and how it did occur. 
We ought to think through the idea of overclassification. And 
then thieves for political reasons or any other reasons, they 
also need to be held accountable. I yield back.
    Mr. Conyers. Thank you, Judge Poe. We welcome our 
witnesses, all seven. Ralph Nader, Professor Steve Vladeck, Mr. 
Gabriel Schoenfeld, Attorney Kenneth Wainstein, Thomas Blanton, 
Director of the National Security Archive, Attorney Abbe 
Lowell, well known to this Committee and to previous 
    And our first witness, Professor Geoffrey Stone, Professor 
of Law and Former Dean of the University of Chicago Law School. 
He has written quite a bit on constitutional law, several 
books, The First Amendment, Government Power. One of his books, 
Perilous Times, Free Speech in War Time, was just recently 
praised by Justice Elena Kagen as a masterpiece of 
constitutional history that promises to redefine the national 
debate on civil liberties and free speech.
    We are honored by you being here, and we ask you to be our 
first witness. And all the statements of all of our witnesses 
will be introduced in their entirety into the record. Welcome.


    Mr. Stone. Chairman Conyers, Judge Gohmert, Members of the 
Committee, thank you very much for inviting me and giving me 
this opportunity to speak with you about these issues. What I 
would like to do is address the constitutionality of the 
proposed SHIELD Act, which has been introduced in both Houses 
of Congress.
    The SHIELD Act would amend the Espionage Act of 1917 to 
make it a crime for any person knowingly and willfully to 
disseminate in any manner, prejudicial to the safety or 
interest of the United States, any classified information 
concerning human intelligence activities of the United States.
    Now, although this act might be constitutional as applied 
to government employees who unlawfully leak such material to 
persons who are unauthorized to receive it, it is plainly 
unconstitutional as applied to other individuals or 
organizations who might publish or otherwise disseminate the 
information after it has been leaked. With respect to such 
other speakers, the Act violates the First Amendment unless, at 
the very least, it is expressly limited to situations in which 
the dissemination of the specific information at issue poses a 
clear and imminent danger of grave harm to the Nation.
    The clear and present danger standard in varying forms has 
been a central element of our First Amendment jurisprudence 
ever since Justice Oliver Wendell Holmes first enunciated it in 
his 1919 opinion in Schenck v. the United States. In the 90 
years since Schenck, the precise meaning of clear and present 
danger has evolved, but the principle that animates it was 
stated eloquently by Justice Louis Brandeis in his brilliant 
1927 concurring opinion in Whitney v. California. ``Those who 
won or our independence,'' wrote Brandeis, ``did not exalt 
order at the cost of liberty. They understood that only an 
emergency can justify repression. Such,'' he said, ``must be 
the rule if authority is to be reconciled with freedom. Such is 
the command of the Constitution. It is therefore always open to 
challenge a law abridging free speech by showing that there was 
no emergency justifying it.''
    This principle is especially powerful in the context of 
government efforts to suppress speech concerning the activities 
of the government itself. As James Madison observed, ``a 
popular government without popular information with the means 
of acquiring it is but a prologue to a forest or a tragedy or 
perhaps both.'' As Madison warned, if citizens do not know what 
their own government is doing, then they are hardly in a 
position to question its judgments or to hold their elected 
representatives accountable.
    Government secrecy, although surely necessary at times, can 
also pose a direct threat to the very idea of self-governance. 
Nonetheless, the First Amendment does not compel government 
transparency. It leaves the government extraordinary autonomy 
to protect its own secrets. It does not accord anyone the right 
to have the government disclose information about its actions 
or policies, and it cedes to the government considerable 
authority to restrict the speech of its own employees.
    What it does not do, however, is to leave the government 
free to suppress the free speech of others when it has failed 
itself to keep its own secrets. At that point, the First 
Amendment kicks in with full force. And as Brandeis explained, 
only an emergency can then justify suppression. We might think 
of this like the attorney/client privilege. The client is free 
to keep matters secret by disclosing them to no one. He is also 
free to disclose certain matters to his attorney, who is under 
a legal obligation to respect the confidentiality of the 
client's disclosures.
    In this sense, the attorney is sort of like the government 
employee. If the attorney violates the privilege by revealing 
the client's confidences, say, to a reporter, then the attorney 
can be punished for doing so, but the newspaper cannot 
constitutionally be punished for disseminating the information.
    Now, some may wonder whether it makes sense to give the 
government so little authority to punish the dissemination of 
unlawfully leaked information, but there are sound reasons for 
insisting on a showing of clear and present danger before the 
government can punish speech in this context.
    First, the mere fact that the dissemination of such 
information might, in the words of the proposed Act, in any 
matter, ``prejudice the interest of the United States'' does 
not mean that the harm outweighs the benefit of publication, as 
Chairman Conyers noted. In many circumstances, such information 
may indeed be extremely valuable to public understanding.
    Second, a case-by-case balancing of harm against benefit 
would be unwieldy, unpredictable and impracticable. Clear rules 
are essential in the realm of free speech. Indeed, that is one 
reason why we grant the government so much authority to 
restrict the speech of its own employees, rather than insisting 
that in every case the government must demonstrate that the 
harm outweighs the benefit.
    Third, as we have learned from our own history, there are 
great pressures that lead both government officials and even 
the public to overstate the potential harm of publication in 
times of national anxiety. A strict clear and present danger 
standard serves as a barrier to protect us against that danger.
    And finally, a central principle of the First Amendment is 
that the suppression of public speech must be the government's 
last rather than its first resort in addressing a potential 
problem. If there are other means by which the government can 
prevent or reduce the danger, it must exhaust those other means 
before it can even entertain the prospect of suppressing the 
freedom of speech.
    In the secrecy situation, the most obvious and the correct 
way for government to prevent the danger is by ensuring that 
information that must be kept secret is kept secret, and is not 
leaked in the first place. Indeed, the Supreme Court made this 
very point less than a decade ago in a case known as Bartnicki 
v. Vopper, in which the court held that when an individual 
receives information from a source who has obtained it 
unlawfully, that individual may not be punished for publicly 
disseminating the information ``absent a need of the highest 
    The Court explained that ``if the sanctions that presently 
attach to the underlying criminal act do not provide sufficient 
deterrence, then perhaps those sanctions should be made more 
severe.'' But it would be, the Court said, ``quite remarkable 
to hold that an individual can constitutionally be punished 
merely for disseminating information because the government 
itself failed to deter conduct by a nonlaw abiding party.''
    This may seem a disorderly situation, but the court has, in 
fact, come up with a good solution. If we grant the government 
too much power to punish those who disseminate information, 
then we risk too great a sacrifice of public deliberation. If 
we grant the government too little power to control 
confidentiality at the source, then we risk too great a 
sacrifice of secrecy. The solution is to reconcile the 
irreconcilable values of secrecy, on the one hand, and 
accountability, on the other, by guaranteeing both a strong 
authority of the government to prohibit leaks, and an expansive 
right of others to disseminate information to the public.
    The bottom line then is this: The proposed SHIELD Act is 
unconstitutional. At the very least, it must limit its 
prohibition to those circumstances in which the individuals who 
publicly disseminated classified information knew that the 
dissemination would create a clear and imminent danger of grave 
harm to our Nation or our people. Thank you.
    Mr. Conyers. Thank you very much, Professor.
    [The prepared statement of Mr. Stone follows:]
                Prepared Statement of Geoffrey R. Stone


    Mr. Conyers. Our next witness is well known here, Abbe 
Lowell, Esquire, partner at McDermott, Will & Emery. As a 
matter of fact, he served as chief counsel during the President 
Bill Clinton impeachment. He is also a former special assistant 
to the Attorney General, and is well known for his criminal 
defense work, particularly in espionage matters, including the 
2007 AIPAC case. We welcome you back here again, Abbe. You may 

                  McDERMOTT WILL & EMERY, LLP

    Mr. Lowell. Thank you, Mr. Chairman and Judge Gohmert. It 
is always an honor to be in this particular room. I appreciate 
you receiving my statement. Let me say that the perspective I 
bring is, as the Chairman said, comes from basically three 
points of reference. The first is my service in the Justice 
Department for the Attorney General when issues of 
classification were being discussed. The second is 4\1/2\ years 
of litigating under the Espionage Act in the so-called AIPAC 
lobbyist case that ended 30 days before trial when the Justice 
Department stopped it and now representing a former Department 
of State employee also charged under the Espionage Act.
    These oversight hearings could not be more important or 
more timely to look at this principal law that is used whenever 
cases like the AIPAC lobbyist case and now the WikiLeaks case 
make the news. However, this law, as everyone has said, is 
about 100 years old and it had flaws in it in terms of its 
language from the moment it was passed, and it has certainly 
shown to be outdated, at least ever since the debate that 
occurred in the Pentagon Papers case in 1971.
    However, as the Chair has said, for all those commentators 
who are demanding that Congress do something here and now, this 
Committee knows better that headline news is not the time to 
pass a new criminal law, especially when there are important 
constitutional principles at stake, because that inevitably 
leads to decades of unintended consequences and litigation.
    So what this Committee is doing to begin the process of 
carefully considering these complicated issues is precisely the 
way to go, and it is the speed in which to travel. Let me start 
by issuing what I think are the four corners of the discussion. 
The first is is that everyone agrees that there is a need for a 
strong criminal law to address real spying and espionage, to 
address the intentional disclosure of what could be called 
classified national defense information with the intent to 
injure the United States or to assist an adversary.
    There needs to be a law prohibiting the mishandling of 
properly classified information and against those three 
important national security principles needs the balance of 
protecting important constitutional rights. The problem is that 
the current law lumps all that I have said together, and the 
sections of the current law apply equally and have been applied 
equally when they are being used to go after a former FBI agent 
spy, Robert Hanssen, in disguise in secret in drop zones or two 
foreign policy analysts having a spaghetti lunch across the 
river near the Pentagon.
    And any law that can apply to those two circumstances is 
the law that needs to be carefully scrutinized. One more 
introductory remark, if I may, and this has already been said 
by everybody across the way from me, when Congress starts 
deciding how to criminalize the disclosure of classified 
information, it should take into consideration how much 
overclassification there really is.
    We have seen in the WikiLeaks events material that bear a 
classification stamp that simply recounts what some diplomat 
believes is the private life preferences of a foreign leader as 
opposed to when we are worried about what that foreign leader 
might do in a military action when properly or improperly 
provoked, yet they both bear the same classification stamp.
    The problems of the law are many. The current law, the 
Espionage Act particularly, is so vague and so broad because it 
deals with words that don't have obvious meanings, such as 
information relating to the national defense, so that they can 
be applied immediately to a government employee who signs a 
confidentiality agreement, and then it could be applied to the 
foreign policy analyst who meets with that government employee 
and discusses what the government employee knew. And then it 
could be applied to a reporter who is overhearing the 
conversation between the government employee and the analyst 
and prints a story.
    Not only that, the current laws can be applied to each of 
these individuals whether or not there is an actual document 
involved, or whether the subject of the leak is an oral 
conversation. And not only that, a prosecution can be brought 
without the requirement of any of the disclosures involving an 
actual intent to injure the United States or to assist an 
adversary. And all this is made more complicated when there are 
good motives involved, such as somebody trying to bring to the 
attention of the public a lie the government has stated, or a 
corrupt contract, or when the press is doing its job or when 
lobbyists are doing theirs.
    Because as the cases state, the First Amendment applies to 
the exchange of speech and ideas in our free society, whether 
the information is general foreign policy material or whether 
it happens to be classified, so the issue is the balancing of 
the very real and important national security interests of the 
United States in ever dangerous times.
    Over the past few decades, courts have grappled how best to 
apply the words of the law to these situations. In the AIPAC 
lobbying case, for example, the court made clear that to 
sustain a case under the Espionage Act, the government would 
have to prove beyond a reasonable doubt that the defendants had 
a specific criminal intent to injure the United States and that 
they acted in bad faith.
    Now that there is the public disclosure of WikiLeaks and 
Julian Assange, with thousands of documents, these same 
questions arise again. Does the law apply extraterritorially? 
Is he or is he not a journalist? Is there the ability to show 
an intent to injure? All of those are the beginning and not the 
end. So while the courts are straightjacketed, this Committee 
in Congress is not, it can operate on a clean slate. And as I 
have indicated in my statement, let me give you what I think 
are five principles that any new law should consider: First, we 
must define spying differently from leaking; second, we need to 
define what classified information, the release of which can 
ever be subject to criminal prosecution; third, we must 
distinguish between disclosures of classified information done 
with an intent to injure the United States, and those where a 
person is not acting with that criminal intent; fourth, we must 
allow for some defense when information is improperly 
classified or when that information is so out in the public, 
that to base a criminal prosecution on it defies the notions of 
fairness and due process; and last, we need a law that will 
rationalize how it is possible to apply it to government 
officials and nongovernment officials, especially when those 
nongovernment officials are protected by the First Amendment.
    That is easier said than done. This is the beginning I know 
of a long process. I know it is possible to balance those two 
interests, and along with my panel members, I stand ready to 
help in any way I can.
    Mr. Conyers. Thank you, Abbe Lowell.
    [The prepared statement of Mr. Lowell follows:]
                Prepared Statement of Abbe David Lowell


    Mr. Conyers. Our next witness, Kenneth Wainstein, is well 
known to the Committee as well. He testified here last year. 
And he also testified as the assistant attorney general on 
national security. So we welcome him back. He is a partner at 
O'Melveny & Myers. And he has a particular point of view that 
the Committee feels is very important that we hear at this 


    Mr. Wainstein. Thank you very much, Chairman Conyers, Judge 
Gohmert, Members of the Committee. It is an honor to appear 
before you today along with this panel of very distinguished 
    Mr. Conyers. Pull the mic closer to you, please.
    Mr. Wainstein. There you go. I missed the on button. I want 
to thank you again, you, Judge Gohmert, Members of the 
Committee. It is an honor to appear before you today along with 
this panel of distinguished experts and to testify about the 
recent WikiLeaks releases. This situation reflects a 
fundamental tension in our democracy. On one hand, there is the 
importance of the free press and the need to think very long 
and very hard before taking any steps that may chill the 
media's reporting on the workings of government.
    On the other hand, there is the need to keep our national 
security operations confidential so that we can effectively 
defend our Nation against the threats it faces. Stephen Vladeck 
and I testified about this very issue before the Senate 
Judiciary Committee just this May, and at that time, our 
concern revolved primarily around the possibility of a leak to 
a traditional news organization.
    Since May, however, we have all learned that there is a 
much more serious threat, a threat posed by an organization 
that is committed not to the traditional media function of 
reporting newsworthy information, but to the mass and 
indiscriminate disclosure of sensitive information.
    Thanks to WikiLeaks the government now has two very 
important decisions to make. The first is whether to prosecute 
Assange and WikiLeaks. The second is whether to revise the laws 
of the Espionage Act to strike a better and clearer balance 
between security and freedom of the press.
    In terms of prosecution, the stakes for the government are 
very high. If WikiLeaks and Assange end up facing no charges 
for their mass document releases, which are about as audacious 
as I have ever heard of, they will conclude that they are 
legally invulnerable, they will redouble their efforts to match 
or exceed their recent exploits and copycat operations will 
sprout up around the Internet.
    I was encouraged to hear the Attorney General's remarks the 
other day, and I commend the Justice Department for apparently 
undertaking a careful but determined effort to look into 
mounting a prosecution. If this effort does, in fact, ripen 
into a criminal case against Assange and WikiLeaks, it will 
certainly raise a host of hotly litigated issues, the most 
heated of which will be a strong constitutional challenge under 
the First Amendment.
    The main issue here will be the following: If WikiLeaks can 
be charged with espionage for these releases, there is no legal 
and no logical reason why a similar prosecution could not lie 
against all the other mainstream news organizations because 
those organizations, at one time or another, published 
similarly sensitive materials. And if every news outlet in our 
country is in fear of prosecution then what happens to freedom 
of the press?
    This surely is a serious concern. It is the reason why the 
government has never prosecuted a news organization for 
espionage, and it is the reason that we all should pause and 
think through the implications before charging into a 
prosecution here. The key to overcoming this concern is to 
demonstrate that WikiLeaks warrants this exceptional treatment 
because it is fundamentally different from other and real media 
organizations, by showing, for instance, that while the media 
focuses on disseminating newsworthy information, WikiLeaks 
focuses, first and foremost, on simply obtaining and disclosing 
official secrets. While the media gathers news through 
investigative reporting, WikiLeaks uses encrypted Internet drop 
boxes that are specifically designed to collect leaked 
information and circumvent the law. While the media typically 
publishes only those pieces of sensitive information that 
relate to a particular story, WikiLeaks indiscriminately 
releases huge troves of leaked materials.
    By clearly showing how WikiLeaks is fundamentally 
different, the government should be able to demonstrate that 
any prosecution here is the exception and is not the sign of a 
more aggressive prosecution effort against the press.
    The government's second decision here is whether to revise 
the Espionage Act. All agree that the statute is badly 
outdated, and it could use revision on a number of points such 
as clarifying the level of intent required to prosecute a leak 
case; determining when the government does and does not need to 
show that the leak actually risked damage to our national 
security before proceeding with a case; dropping the term 
national defense information and providing a clear definition 
of that information that is protected by the Espionage Act.
    A clarification of these issues would go a long way toward 
making the statute more directly relevant to the espionage 
threats of the 21st century.
    WikiLeaks presents a challenge for the executive branch, 
which now has to decide how to respond to these disclosures, 
but it also presents a serious challenge for Congress, which 
has to decide whether we need new statutory tools to deal with 
this new threat.
    I commend the Committee for stepping up to this challenge. 
Given the fundamental importance of this issue to our civil 
liberties and to our national security, I am confident it will 
be time well spent. I appreciate you including me in this 
important effort, and I stand ready to answer any questions you 
may have. Thank you, Mr. Chairman.
    Mr. Conyers. We appreciate you coming before us once again.
    [The prepared statement of Mr. Wainstein follows:]
               Prepared Statement of Kenneth L. Wainstein


    Mr. Conyers. I think most people on the Committee are 
resigned to the fact that we have to look at the Espionage Act 
in the coming Congress. The question is, of course, what do we 
do and how much change? We will be talking about that with you 
when we begin our question period. Welcome, Mr. Schoenfeld, 
senior fellow at Hudson Institute, a well-known author of 
Necessary Secrets: National Security, the Media and the Rule of 
Law. You have testified in Congress on the responsibilities of 
the press during wartime, and we welcome you to the Judiciary 
Committee this morning.


    Mr. Schoenfeld. Thank you very much, Mr. Chairman, Judge 
Gohmert, distinguished Members of the Committee. It is an 
    Mr. Conyers. I am afraid it is not on.
    Mr. Schoenfeld. It is an honor, Mr. Chairman, Judge 
Gohmert, distinguished Members of the Committee, to appear here 
today before you to discuss this issue of such vital concern to 
our country. The recent massive disclosure by WikiLeaks of U.S. 
diplomatic documents has sparked the most intense discussion of 
governmental secrecy in our country since the Pentagon Papers 
were published by the New York Times in 1971. Leading officials 
of the Obama administration have decried the damage. Ranking 
Republicans and Democrats in Congress have called for the 
prosecution of Julian Assange under the Espionage Act.
    Whether or not the Administration takes legal action 
against Mr. Assange, we should not lose sight of the broader 
context in which this episode has occurred. And I would like to 
note several of its significant features. First, we live in the 
most open society in the history of the world. Thanks in part 
to an unfettered press and the First Amendment, and thanks in 
part to laws like the Freedom of Information Act and the 
Presidential Records Act, we as a country are extremely well 
informed about what our government does in our name.
    Second, even as we are a wide open society, we have too 
much secrecy. Numerous observers across the political spectrum 
concur, as we here on the panel seem to be concurring today, 
that there is a great deal of mis- and overclassification 
within our national security bureaucracies.
    Third, owing in part to mis- and overclassification, the 
leaking of secret information to the press has become part of 
the normal informal process by which the American people are 
kept informed. A study by the Senate Intelligence Committee 
counted 147 disclosures of classified information that made 
their way into the Nation's eight leading newspapers in one 6-
month period alone. None of these leaks resulted in legal 
    Fourth, many leaks are innocuous and/or authorized. For 
example, Bob Woodward's recent book, Obama's Wars, is replete 
with code names and descriptions of classified programs. No one 
has pointed to any specific damage caused by this book, perhaps 
because the only damage done was to the integrity of the 
secrecy system itself.
    Fifth, some leaks are unauthorized and exceptionally 
damaging. In 2006, to take one example, The New York Times 
revealed details of a joint CIA Treasury program to monitor the 
movement of al Qaeda funds via the Belgium financial clearing 
house known as SWIFT. The Times published the story against the 
strenuous objections of leading government officials in both 
    There is reason to believe that our ability to track the 
flow of al Qaeda and Taliban funds was severely hampered by the 
publication of a story that provided few discernible benefits 
to the public, if any.
    So I have sketched here a structure riddled with 
contradictions. On the one hand, we are a wide open society. On 
the other hand, we have too much secrecy. On the one hand, we 
have authorized and innocuous leaks of government secrets. On 
the other hand, we have unauthorized and highly dangerous 
    And this is a very unsatisfactory state of affairs, and we 
have begun to pay a high price for it. And there are five 
things we need to do in my judgment, all of them interlinked.
    First, we need to devote more attention and resources to 
declassification to combating overclassification. Fewer secrets 
and a more rational secrecy policy will help us to preserve 
truly necessary secrets.
    Second, we need to make sure that legitimate whistleblowers 
have viable avenues other than the media to which they can 
    Third, we need to reestablish deterrents and prosecute 
those in government who violate their confidentiality 
agreements and pass secrets to the press or to an outfit like 
WikiLeaks. The Obama administration has been doing this with 
unprecedented energy. The last 24 months have witnessed four 
prosecutions of leakers, more than all previous presidencies 
    Fourth, we need, at the very least, to bring down the 
weight of public opprobrium on those in the media who 
disseminate vital secrets. In this body, the House of 
Representatives, contributed to that effort in 2006 when it 
passed a resolution reprimanding The New York Times and other 
news organizations for revealing the SWIFT monitoring program.
    And finally, we sometimes need to take legal action. We 
have never had a prosecution of a media outlet in our history, 
although we came close during World War II when The Chicago 
Tribune revealed that we had broken Japanese naval codes. Well, 
I believe that the First Amendment would not protect a news 
outlet that endangered the Nation as The Chicago Tribune did in 
1942. Reasons of prudence suggest that such a prosecution 
should be a last resort used against the media outlet only in 
the face of reckless disregard for the public safety.
    WikiLeaks, whether it is or is not a news organization, has 
certainly exhibited such reckless disregard. Thanks in part to 
the march of technology, it has been able to launch what might 
be called LMDs, leaks of mass disclosure, leaks so massive in 
volume and so indiscriminate in what they convey that it 
becomes very difficult to assess the overall harm precisely 
because there are so many different ways in which that harm is 
    The purpose of these leaks is to cripple our government, 
which Mr. Assange believes is a ``authoritarian conspiracy''. 
But the United States is not such a conspiracy. It is a 
democracy. And, as a democracy, it has every right to create 
its own laws concerning secrecy and to see to it that those 
laws are respected. And as a democracy it has every right to 
protect itself against those who would do it harm.
    Thank you very much for your attention.
    [The prepared statement of Mr. Schoenfeld follows:]
                Prepared Statement of Gabriel Schoenfeld


    Mr. Conyers. Thank you so much, Mr. Gabriel Schoenfeld.
    Our next witness, Professor Steve Vladeck, is professor of 
law at American University. He was part of the legal team that 
successfully won Hamdan v. Rumsfeld, challenging former 
President George W. Bush's use of military tribunals. He is 
well-known to the judiciary; and as the WikiLeaks controversy 
has unfolded, he has further distinguished himself as one of 
the foremost national experts on the matter.
    We welcome you here.


    Mr. Vladeck. Thank you, Mr. Chairman.
    Chairman Conyers, Judge Gohmert, distinguished Members of 
the Committee, thank you very much for inviting me to 
participate in this important hearing. I hope my testimony 
won't sound too much like a broken record.
    You know, testifying before the House Permanent Select 
Committee on Intelligence in 1979, Tony Lapham, who was then 
the general counsel of the CIA, describes the uncertainty 
surrounding the scope of the Espionage Act as ``the worst of 
both worlds''. As he explained, on the one hand, the laws stand 
idle and are not enforced at least in part because their 
meaning is so obscure; and, on the other hand, it is likely 
that the very obscurity of these laws serves to deter perfectly 
legitimate discussion and debate by persons who must be as 
unsure of their liabilities as I am unsure of their 
    Whatever one's views of WikiLeaks as an organization, of 
Julian Assange as an individual, or of public disclosures of 
classified information more generally, recent events have 
driven home Lapham's central critique that the uncertainty 
surrounding this statute benefits no one and leaves many 
questions unanswered about who may be held liable and under 
what circumstances, for what types of conduct.
    In my testimony today I would like to briefly identify five 
distinct ways in which the Espionage Act as currently written 
creates problematic uncertainty and then, time permitting, 
suggest potential means of redressing these defects.
    First, as the title suggests and as Mr. Lowell testified, 
the Espionage Act of 1917 was designed and intended to deal 
with classic acts of espionage, which Black's Law Dictionary 
defines as ``the practice of using spies to collect information 
about what another government or company is doing or plans to 
    As such the plain text of the Act fails to require its 
specific intent either to harm the national security of the 
United States or benefit a foreign power. Instead, the Act 
requires only that the defendant know or have reason to believe 
that the wrongfully obtained or disclosed national defense 
information is to be used to the injury of the United States or 
to the advantage of any foreign power.
    No separate statute, as this Committee knows, deals with 
the specific and, in my view, distinct offense of disclosing 
national defense information in non-espionage cases. Thus, the 
government has traditionally been forced to shoehorn into the 
Espionage Act three distinct classes of cases that raise three 
distinct sets of issues: classic espionage, leaking, and the 
retention or redistribution of national defense information by 
private citizens.
    Again, whatever one's view of the merits, I very much doubt 
that the Congress that drafted the Espionage Act in the midst 
of the First World War meant for it to cover each of these 
categories, let alone cover them equally.
    Second, the Espionage Act does not focus solely on the 
initial party who wrongfully discloses national defense 
information but applies in its terms to anyone who knowingly 
disseminates, distributes, or even retains national defense 
information without immediately returning the material to the 
government officer authorized to possess it. In other words, 
the text of the Act draws no distinction between the leaker, 
the recipient of the leak, or the 100th person to redistribute, 
retransmit, or even retain the national defense information 
that by that point is already in the public domain. So long as 
the putative defendant knows or has reason to believe that 
their conduct is unlawful they are violating the Act's plain 
language regardless of their specific intent and 
notwithstanding the very real fact that by that point the 
proverbial cat is long since out of the bag.
    Third, and related, courts struggling with these first two 
defects have reached a series of disparate conclusions as to 
the requisite mens rea that individuals must have to violate 
the Act. Thus, and largely to obviate First Amendment concerns, 
Judge Ellis in the AIPAC case that Mr. Lowell testified about, 
read into the Espionage Act a second mens rea. As he explained, 
whereas the statute's willfulness requirement obligates the 
government to prove that defendants know that disclosing 
documents could threaten national security, and that it is 
illegal, it leaves open the possibility that defendants could 
be convicted for these acts despite some salutary motive. By 
contrast, the reason to believe requirement that accompanies 
disclosures of information, as distinct from documents, 
requires the government to demonstrate the likelihood of the 
defendant's bad faith purpose to either harm the United States 
or to aid a foreign government.
    Whether or not one can meaningfully distinguish between the 
disclosure of documents and the disclosure of information in 
the digital age, it is clear at the very least that nothing in 
the text of the statute speaks to the defendant's bad faith. 
Nor is there precedent for the proposition that willfulness, 
which the Espionage Act does require, is even remotely akin to 
bad faith. In other words, courts have basically stumbled 
around to try to mesh the First Amendment concerns with the 
very vague and sweeping language of the statute.
    Fourth, and briefly, the potentially sweeping nature of the 
Espionage Act as currently written may inadvertently interfere 
with Federal whistleblower laws. For example, the Whistleblower 
Protection Act protects the public disclosure of a violation of 
any law, rule, or regulation only if such disclosure is not 
specifically prohibited by law and if such information is not 
specifically required by executive order to be secret in the 
interest of national defense or the conduct of foreign affairs. 
Similar language appears in most other Federal whistleblower 
    I daresay the government would be reluctant to prosecute an 
individual who complied with Federal whistleblower laws, but I 
think that the statute could be amended to remove that within 
the realm of possibility.
    And, finally--I won't even talk about this in detail, 
because it was already been mentioned by my colleagues--the 
problem of overclassification. Should there be a defense for 
improper classification? How do we actually attack the real 
elephant in the room when we are talking about the disclosure 
of things that perhaps should never have been kept secret in 
the first place?
    What is to be done. Perhaps unsurprisingly in light of my 
observations above and those of my colleagues, I would 
recommend three distinct sets of changes to the Espionage Act:
    First, introduce a clear and precise specific intent 
requirement that constrains the scope of the Espionage Act to 
cases where the defendant specifically intends the disclosure 
to harm national security and/or to benefit a foreign power. I 
think you have already heard this from Mr. Lowell.
    Second, create a separate, lesser offense for unauthorized 
disclosures and retention of classified information and 
specifically provide either that such a prohibition does or 
does not cover the public redistribution of such information, 
including by the press. If this Committee and body does decide 
to include press publication, my own view is that the First 
Amendment requires the availability of any number of 
affirmative defenses that the disclosure was in good faith; 
that the information was improperly classified; that the 
information was already in the public domain; and/or that the 
public good resulting from the disclosure outweighs the 
potential harm to national security.
    Third, and finally, include in both the Espionage Act and 
any new unauthorized disclosure statute an express exemption 
for any disclosure that is covered by an applicable Federal 
whistleblower statute.
    Mr. Chairman, in summation, writing in a Law Review article 
about 40 years ago, Hal Edgar and Benno Schmidt, two Columbia 
Law School professors, wrote that ``we have lived since World 
War I in a state of benign indeterminacy about the rules of law 
governing defense secrets.'' If anything, such benign 
indeterminacy has only become more pronounced in the last 40 
years and, if recent events are any indication, increasingly 
less benign.
    Thank you for the invitation to testify. I look forward to 
your questions.
    [The prepared statement of Mr. Vladeck follows:]
                Prepared Statement of Stephen L. Vladeck


    Mr. Conyers. Well, you have left us with some very large 
challenges, Professor Vladeck. We appreciate it very much.
    Our next witness is the Director of the National Security 
Archive at George Washington University, Professor Thomas 
Blanton. In the year 2000, the Archive won the George Polk 
award for ``piercing self-serving veils of government secrecy, 
guiding journalists in search of the truth and informing us 
all.'' He is also the founding editorial board member of 
freedominfo.org, a network of international freedom of 
information advocates.
    I read your prepared statement with great enthusiasm, and 
we are happy to have you here today.


    Mr. Blanton. Mr. Chairman, it is a great honor for me, and 
Judge Gohmert and also to be in the middle of this 
extraordinary high-level tutorial in the Espionage Act and the 
Constitution. I feel like a grad student again; and it is a 
joy, actually.
    I also wanted to thank you, Mr. Chairman, for resurrecting 
my graveyard quote, that we have low fences around vast 
prairies of government secrets where we really need tall fences 
around small graveyards of the real secrets; and that is a core 
point I want to come back to today.
    I really have three points. One of them is the government 
always overreacts to leaks, always; and all you have to do is 
say the phrase ``Watergate plumbers'' and you know what I am 
talking about.
    Back then, they were discussing firebombing the Brookings 
Institution on the chance there might still be a copy of the 
Pentagon papers in there. Today, you are having debates on FOX 
news: Let's do some targeted assassination attempts on Julian 
    Well, I have to say G. Gordon Liddy would be right at home, 
and both is absurd. And the overreaction the government 
typically does is not to kill anybody or to firebomb something 
but to go right to the second major point I want to make today. 
They are going to classify more information.
    What I am worried about most is the backlash. I mean, in my 
prepared statement, I have got multiple examples of all the 
estimates, and they range from 50 percent to 90 percent, of 
what the problem of overclassification really amounts to. 
Governor Tom Kean, head of the 9/11 Commission, after looking 
at all of the al Qaeda intelligence that we gathered before 9/
11, said, you know, 75 percent of what I saw that was 
classified should not have been. And the Commission said we not 
only needed to do information sharing between the agencies, we 
had to do information sharing with the American people, because 
that is the only way we can really protect ourselves. What a 
great lesson that is.
    The system is so overwhelmed with the secrets that we can 
no longer really protect the real ones and we can't let out the 
ones that would actually keep us all safer.
    And I think it is a mistake to try to see this as a 
balancing test. It is not a balance between openness and 
security. The findings of the 9/11 Commission were that more 
openness would have made us more secure. That is what you do an 
in open society to keep yourself safe. You are not safer in the 
dark. You don't hide your vulnerabilities. You expose them and 
you fix them. That is how we proceed in America.
    The third point I just want to make about where we are 
today. We are in the middle of a syndrome that one senior 
government official I really respect holds all the clearances, 
does the audits, pushes back against excessive secrecy, called 
it Wikimania. We are in the middle of Wikimania, and it is 
going to lead to so much more heat than light. Targeted 
assassination is only the most extreme case, but look at all 
the other proposals we have got on the table and the front 
burners to try to push back, to punish WikiLeaks, to push back 
against speech.
    I think the problem here is we have got to look at each one 
of those proposals and say, is that really going to address the 
problem? Is it going to reduce government secrecy or is it 
going to add to it? Is it going to make us more safe? Is it 
going to make us more free? And do that test.
    The Wikimania is really coming from a series of what in my 
statement I call Wikimyths. There has not been a documents 
dump. Everybody uses that phrase. There hasn't been one. The 
less than 2,000 cables are on the public record today out of 
that big database, and the editors of Le Monde and the Guardian 
and New York Times say that WikiLeaks is consulting with them 
about what to publish, what to redact and doing the dialogue 
with government officials in a pretty extraordinary, 
responsible way.
    It is a very different posture, I should say, than 
WikiLeaks had even 6 or 8 months ago. I think the criticism 
they have gotten from journalists like us and from the public 
about endangering people's lives in Afghanistan and elsewhere, 
believe it or not, I think they have actually heard it.
    There is no epidemic of leaks. In fact, all four of the big 
WikiLeak publicity spats have come from a single person as far 
as we know, Bradley Manning, a young private.
    So how do you solve the Bradley Manning problem? Well, you 
could do a pretty simple thing. The Defense Department has 
already done it. And here is a rational security policy. Just 
like you got two people to launch nuclear missiles, you have go 
two people to handle a communications manual that has codes in 
it, have two people before you can download something from a 
secure network. Pretty simple. That would have stopped Bradley 
Manning. Mormons send out two people as missionaries because 
that is how you have accountability, right? You don't have 
solos. All right.
    There is no diplomatic meltdown from the WikiLeaks. I mean, 
there is a lot of heatedrhetoric. But Secretary of Defense 
Robert Gates who ought to know--he served every President in my 
lifetime, as far as I can tell--and, Mr. Chairman, you quoted 
his remarks. Yeah, it is awkward, yeah, it is embarrassing, 
but, no, it is not a meltdown. It will make the job harder for 
diplomats. Maybe somebody is going to have to be reassigned. 
But, you know, in the long run, it is probably in the American 
national security interest for more foreign governments to be 
more accountable to their own citizens for their diplomacy. It 
is probably in our national security interest for the King of 
Saudi Arabia to actually be on the public record a little more 
often and the China politburo members to get exposed every now 
and then. That might be a long-term goal of what American 
national security diplomacy ought to be about.
    And, finally, there is not a set of Wiki terrorists. I have 
heard that phrase batted around. They are not terrorists.
    I have to tell you, I wish every terrorist group in the 
world would write the U.S. ambassador in their local town, you 
know, days or a week before they are about to launch something, 
and ask the ambassador, hey, would you help us, you know, make 
sure nobody innocent gets hurt? Would you really work with us? 
We would be glad to talk to you.
    And I understand why the ambassadors didn't believe them. 
Because WikiLeaks said, oh, and, by the way, we will keep 
anything you say to us confidential. It is hard to square with 
the previous statements of WikiLeaks.
    But I wish every terrorist group would get into partnership 
with Le Monde and El Pais and the Guardian and the New York 
Times to assess what the damage might be, to redact their own 
documents, to put regulators on the bombs they drop. That would 
be a good thing. WikiLeaks is not terrorists.
    And so that brings me to my final real point and 
recommendation to this Committee and to the prosecutors across 
the river in Alexandria: Just restraint. I know you don't 
usually have witnesses come up here and say, hey, let's all go 
take a nap. But you know in sleep-deprived Washington we might 
could use a little more restraint.
    I would say leave the Espionage Act back in mothballs where 
it is right now and should stay. And in fact what we know is 
from some freedom of information requests there are still some 
classified documents from 1917 that will give the Espionage Act 
very good company. Don't mess with it. Leave it alone.
    Our fundamental test should come out of Justice Stewart's 
dicta in the Pentagon papers case and some wonderful articles 
that Jack Goldsmith has actually written in the last couple of 
years where he says, look, our problem is, you know, the 
fundamental cause of leaks is a sense of illegitimacy that is 
bred by excessive government secrecy.
    How do you address that? You reduce the secrecy. How do you 
deal with the legitimacy problem? You make sure as few secrets 
as possible are actually held and you protect those very 
    So the test is, for all these proposals, legislative and 
otherwise, does it send a signal that will actually reduce 
government secrecy? Does it send a signal that we need maximum 
possible disclosure, in Stewart's phrase, to have a system that 
actually has credibility and can protect the real secrets and 
where we can protect ourselves?
    I thank you, Mr. Chairman, for this opportunity to engage 
in this debate. I hope it will reduce the mania a little bit 
and cut through some of the myths. Thank you, sir.
    [The prepared statement of Mr. Blanton follows:]
                Prepared Statement of Thomas S. Blanton

    Mr. Conyers. Thank you so much.
    Ralph Nader is well-known, a leading advocate, an author, a 
lawyer, a Presidential candidate. But Atlantic Monthly has 
named him one of the 100 most influential Americans in history, 
and I thought I would put that in the record so that more 
people than read the Atlantic Monthly would know about it.
    We welcome you once again to the Judiciary Committee, Ralph 

                   TESTIMONY OF RALPH NADER, 
                   LEGAL ADVOCATE AND AUTHOR

    Mr. Nader. Thank you, Mr. Chairman, Congressman Gohmert, 
and the other Members of the Committee for this important and 
timely hearing. A lot of interesting good points have just been 
made, and there is no point for redundancy.
    I would like to mention that we ought to look at the issue 
of government secrecy and government openness with historic 
cost benefit evaluation. I worked with Congressman John Moss in 
1966 on the first Freedom of Information Act, and I saw the 
fervent opposition of the bureaucrats in the executive branch 
to what was then a rather modest piece of legislation. I then 
worked with him on strengthening 1974 Freedom of Information 
amendments which made our Freedom of Information Act arguably 
the best in the world, and I also saw the same opposition. I 
think that people like Daniel Patrick Moynihan in his book on 
government secrecy point out that one of the first victims of 
government secrecy is the Congress itself.
    The Congress repeatedly has been repudiated from getting 
the information in order to perform its constitutional 
responsibilities such as its warmaking power, its oversight 
subpoena power, its appropriations deliberations, and many 
others. Bruce Fein has decried this deprivation of information 
by the executive branch, vis-a-vis Congress, as a principal 
cause of weakening what is supposed to be the most powerful 
branch of our government.
    If you look at the historical record, the benefits of 
disclosure vastly outweigh the risks that come from disclosure. 
Wars could have been prevented if the American people knew what 
was going on in the Spanish American war, in World War II, in 
the Tonkin Gulf resolution, if the American people knew was 
going on before the invasion of Iraq with the lies, the cover 
ups, the distortions that now have been historically documented 
by the Bush administration, including Richard Clarke, the 
antiterrorism counselor to President Bush, among many.
    What is fascinating about this WikiLeaks controversy is 
that we have to avoid it becoming a vast distraction, focusing 
on these so-called leaks instead of focusing on the abysmal 
lack of security safeguards by the executive branch of the U.S. 
Government and making those who set up this porous system or 
who allowed it to be penetrated accountable.
    The distraction also is away from the lack of account for 
executive branch officials who suppress information. How many 
times have you seen those people prosecuted at the highest 
levels and the middle levels of government? The suppression of 
information has led to far more loss of life, jeopardization of 
American security, and all the other consequences that are now 
being attributedto WikiLeaks and Julian Assange.
    A million Iraqis have died as a result of the invasion, 
5,000 U.S. soldiers, 100,000 sick and injured and traumatized, 
a country blown apart, more violent opponents to our country, 
more national insecurity.
    We have to be very careful here that the Congress does not 
stampede itself by executive branch pressure to repeat the 
PATRIOT Act debacle when this Committee issued a pretty sound 
piece of legislation with hearings, bipartisan, and then was 
stampeded along with the rest of the Congress by Karl Rove and 
George W. Bush with this notorious PATRIOT Act. Stampeded 
legislation always comes back to haunt its authors.
    Furthermore, I am very disturbed by the reaction of 
Attorney General Holder. I think he is reacting to political 
pressure, and he is starting to fix the law to meet the 
enforcement policy, and that is very dangerous. He said the 
other day, ``The national security of the United States has 
been put at risk, the lives of the people who work for the 
American people have been put at risk, the American people 
themselves have been put at risk by these actions that I 
believe arrogant, misguided, and ultimately not helpful in any 
way.'' Referring to the WikiLeak disclosures via the New York 
Times and the Guardian and other newspapers.
    Those very words could apply to the Bush administration and 
the Obama administration's military and foreign policy, that 
they would put us in greater risk. And it is very important for 
us, especially represented by Congress, that the penchant for 
secrecy is not nourished further by the WikiLeaks events which 
are going to unfold in greater magnitude in the coming weeks to 
leave millions of citizens in our country with a debilitating 
dictatorial vulnerability to further concentration of 
authoritarian power in the executive branch.
    Floyd Abrams, not known as a radical, arguably the leading 
First Amendment practitioner in the country, said, in 
responding to Senator Lieberman's precipitous urging for Holder 
to indict Assange, he said, ``I'd say the potential risks 
outweigh the benefits of prosecution. I think the instinct to 
prosecute is rational, and I don't mean to criticize the 
government for giving it serious consideration, but at the end 
of the day I think it could do more harm to the national 
security properly understood than letting it go.''
    Jefferson and Madison had it right. Information is the 
currency of democracy, freedom of speech is inviable, and I 
would add that secrecy is the cancer, the destroyer of 
    We have overwhelming examples, some of which were in your 
statement, Mr. Chairman, of what happens when information paid 
for by the taxpayer, reflective of the public's right to know, 
is kept secret. If you take all of the present and probable 
future disclosures under the WikiLeaks initiative, the vast 
majority should never have been classified, the vast majority 
are reprehensible use of people employing taxpayer dollars, the 
vast majority should have been disclosed, if not never stated, 
for the benefit of the American people to hold their government 
    Forbes magazine in a cover story in its edition December 
20th outlines in an interview with Julian Assange that early 
next year the beginning of the disclosure of corporate 
documents will start. Early next year, Forbes said, ``A major 
American bank will suddenly find itself turned inside out. Tens 
of thousands of its internal documents will be exposed on 
WikiLeaks.org with no polite request for executives' response 
or other forewarnings.''
    Now the importance of that is the danger of the following 
coalition appearing in the coming months. You have the 
government bureaucrats who transcend political parties, the 
government bureaucrats and the corporate executives who want to 
destroy the provision for whistleblower protection in the new 
Financial Reform Act as we speak, that they band together in 
order to focus on the WikiLeaks and try to stampede Congress 
and perhaps public opinion into enacting legislation that will 
further stifle the right of the American people to know and 
further enhance those who believe that the few can decide for 
the many and that concentrated power in the executive branch 
can make a mockery out of the constitutional authority 
reposited in the U.S. Congress.
    We hear a lot about the information age, and we hear a lot 
about what it is supposed to do for us. But the risk in this 
WikiLeaks' overreaction to control of the Internet and to 
damaging a dissemination of compilation and access to 
information worldwide is very, very serious. That is only one 
of the consequences that can occur if the Congress allows 
itself to overreact and if the press does not take a measured 
view and hold to account those who are calling for executive 
assassinations, for repressions, for the detonation of due 
process against people who have received information from 
internal government sources.
    I think the proper range of government security is now 
being deliberated in the executive branch, but it needs to be 
stimulated by Congress.
    At DARPA, Peter Zatko and his group is busily working on a 
technical fix so that this kind of disclosure never happens 
again. Many people think that that cannot be done, that the 
genie of the Internet is out of the bottle.
    But it does seem to me that we should be very careful in 
conclusion in not developing a bill of attainder mind-set, if I 
may use that metaphor. If it is okay for Obama administration 
officials to conspire or collude with Bob Woodward, to use a 
non-normative intonation of those words, and leak cables and 
all kinds of secret information and do it with impunity with a 
reporter who then puts it in a book, it does seem that we are 
on our way not for developing equal protection policy but for 
the kind of discriminating policy that will make our legal 
system not reliable and subject to the distortions of repeated 
judicial decisions.
    Mr. Coble. Mr. Chairman, I think----
    Mr. Nader. I will leave you with that, Mr. Chairman. Thank 
you very much.
    Mr. Coble. Well, okay, a moot point.
    Mr. Conyers. Thank you, Ralph Nader; and my deep gratitude 
to all seven of you. This may, in some ways, be one of the 
finest discussions the Committee has had in the 111th Congress.
    I am going to take my time, instead of directing specific 
questions, to ask all of you or any of you, now that you have 
heard each other, that you may have a reflection or while you 
have been here in the hearing you thought of something you 
might like to add to your statement already, to have this 
opportunity to do so now.
    Mr. Lowell. Mr. Chairman, one thing I would like to respond 
to briefly is the point that my colleague to the left made.
    I understand that we are grappling to try to figure out 
where the First Amendment applies and who is a journalist and 
who isn't. And I know many have said WikiLeaks and Assange are 
not because they, to use the phrase, dump data or they don't 
perform the function of being selective.I think that is a 
dangerous slope to be standing on, because it puts in the 
editorial room individual prosecutors who will make the 
decision as to who is a journalist and who isn't. And to 
individual courts all over the place as to what deserves First 
Amendment protection and what does not. And it doesn't 
distinguish well between what WikiLeaks has done and when a 
more traditional media outlet posts a document in toto on its 
Web site. So it makes for, I believe, a difficulty. And I think 
it is one that cannot be legislated. It has to be decided in 
another fashion.
    But I do want quickly to point out that it is easy to say 
in American history the function of gathering information from 
the government by whatever source and disseminating it through 
the public is classic journalism.
    Mr. Conyers. Yes, Mr. Wainstein.
    Mr. Wainstein. Thank you, Mr. Chairman.
    I appreciate Mr. Lowell's point, that whatever you ask 
anybody, be it a court or a prosecutor, to try to distinguish 
between one person who is a journalist and another person who 
iisn't a journalist is a dangerous slope to be on. Two 
responses to that.
    One is, we are on that slope right now. That is what the 
law allows as it stands; and Mr. Lowell made that point very 
well, that the current law allows the government to prosecute 
both the recipient of the information as well as the leaker of 
the information.
    The second point, though, is if you assume that there is 
ever going to be a case where a reporter or a person in the 
position of the news, the recipient of the information, can be 
charged, then that line has to be drawn.
    So go back to the Chicago Tribune cause, which is sort of 
the classic. 1942, the Tribune actually reports that we have 
broken Japanese code. If the Japanese had paid attention to it, 
millions of lives, including many of our parents, might have 
been lost. They didn't fortunately, and they ended up not 
prosecuting the case.
    But I think many of us or most of us agree that that is a 
case that is so egregious that that newspaper or that reporter 
should or could be charged. If you assume that there is such a 
case and somewhere a line has to be drawn, my point would be is 
WikiLeaks, aside from whether you want to call them a newspaper 
or a news organization or not, is their mission and their mode 
of conduct sufficiently divergent from a traditional news 
organization, the type that the First Amendment was designed to 
protect, that it falls beyond that line? So that it could be 
prosecuted without the First Amendment standing in the way of 
its prosecution and without other news organizations living in 
fear--the news organizations that pursue the traditional 
purpose of news and pursue the traditional modes of conduct of 
news gatherers and reporters--not live in fear that, because 
WikiLeaks got prosecuted, they are going to be prosecuted and, 
therefore, their actions wouldn't be chilled. That is the 
    While I agree with Mr. Lowell that any definitional 
distinction is difficult and can be dangerous, it is where we 
are right now; and I think WikiLeaks--an argument can be made 
that WikiLeaks is exceptional enough a situation that a line 
could be drawn without such damage to the First Amendment.
    Mr. Schoenfeld. Mr. Chairman, I would also compare this 
case to the Pentagon papers case where the Times spent a great 
deal of effort redacting the documents before it published 
them, which is not what is taking place here. This is a very 
different kind of enterprise. And, of course, in that case, 
that was a prior restraint case; and the Supreme Court ruled 
that it was not--the standard had not been met for suppressing 
that information.
    It is also notable that five of the nine Justices said that 
if the case came to them after publication, as a prosecution 
they would strongly consider punishing the Times, prosecuting 
the Times, upholding the conviction of the Times if the 
information was of the character that was prescribed. So I 
think that a prosecution of WikiLeaks, just judging by the very 
scant law we have here, the Pentagon papers case, is a viable 
    Mr. Conyers. Yes, Professor Stone.
    Mr. Stone. Thank you, Mr. Chairman.
    On the discussion about whether WikiLeaks is part of the 
press or whatever, I think that is not a fruitless line of 
inquiry. I agree with Mr. Lowell that drawing a line along 
those directions is simply not going to be coherent.
    But, also, in terms of summary of things, I want to come 
back to how clear it is from this discussion that the starting 
point is the classification system, that the bottom line is 
there cannot be any coherent solution to these issues without 
going back and examining the classification process and 
standards. Unless we do refocus what has happened--because, 
essentially, over the last 70, 80, 90 years, we have run amok 
with secrecy; and that has created the problems that we have 
seen here. It has denied the Congress access to critical 
information, it has denied the courts access to critical 
information, and it has denied American people access to 
critical information. Unless and until we go back and fix that, 
all of this is spinning wheels. I think that is really the 
place where this Committee and where Congress has to start its 
    Mr. Conyers. Professor Blanton and then Ralph Nader.
    Mr. Blanton. Mr. Chairman, I just wanted to, at my own 
peril, try to correct Mr. Schoenfeld's analysis of what is 
going on here. Because, in fact, a great deal of redaction is 
going on here on a daily basis. We have extensive descriptions 
of it in the editors' notes by all the media outlets who are 
publishing stories on this matter, and they have testified to 
the fact that WikiLeaks is following their lead after their 
reporters engage in exactly that discussion with the government 
about what the risk is, which is a discussion the Chicago 
Tribune did not have in its case and was its own, I think, 
journalistic failure, I would argue. So a great deal of 
redaction is taking place.
    And I would just point, also, to a certain trajectory; and 
I suspect that Mr. Assange's lawyers have maybe read some of 
Mr. Wainstein's testimony maybe in advance of this hearing, 
because they are doing some very smart things to eliminate 
exactly the distinctions that you are trying to draw. They are 
asking the government for feedback on the documents. They are 
taking care to follow the lead of the media. They are actually 
doing the publication in concert with major media organizations 
who have the capacity that they do not have to do reporting. In 
fact, they are looking more and more like a media organization.
    But I will even step back one from that. Because my reading 
of the First Amendment as a layperson is that it also protects 
speech--and this goes to Professor Stone's point--not only 
freedom of the press but speech. And it seems to me that you 
will run into really difficult problems not only on the media's 
slippery slope but on speech. It may go to motivation. It may 
go to this fact of overclassification.
    I pointed out in my testimony in the written statement that 
one of the most striking things about the Wiki cables that are 
on the record is the fact that so many of the Confidential and 
Secret ones shouldn't have been classified to begin with. So 
you are going to be in a real mess, I think, in any kind of 
    I will leave it there.
    Mr. Conyers. Schoenfeld, you are entitled to a brief 
    Mr. Schoenfeld. Well, I found myself in agreement with many 
things that Mr. Blanton said in his statement, but one thing I 
strenuously disagreed with is the notion that WikiLeaks is 
responsible in what it is done. It may have indeed redacted 
some of the documents in the most recent disclosures, but we 
have had the two previous dumps of large numbers of documents, 
and I would say 2,000 cables referred to in my judgment is a 
large number of documents. And these were documents that were 
also about military operations, field reports.
    And I remember congressmen have referred to Secretary 
Gate's remarks, missing the damage that was done by the latest 
disclosures. If one looks back at what his remarks were this 
past summer, he said that the lives of American soldiers and of 
Afghan civilians who have cooperated with our efforts there 
were placed at risk. Chairman of the Joint Chiefs of Staff, 
Admiral Mullen, has said that there is blood on the hands of 
WikiLeaks. I think these views are entitled to a great deal of 
respect. The notion that WikiLeaks is responsible seems to me 
    Mr. Conyers. Ralph Nader?
    Mr. Nader. I would like to submit, Mr. Chairman, with your 
permission, for the record an article, a short article, in the 
National Journal called, Breaking the Ranks. Ron Paul 
vigorously defends WikiLeaks, where he asks his colleagues 
which events cause more deaths, ``lying us into war or the 
release of the WikiLeak papers.''
    I would like to also introduce in the record Harvard Law 
Professor Jack Goldsmith, who came out of the Bush 
administration, Seven Thoughts on WikiLeaks, including the 
description of top Obama administration officials' cooperation 
with Bob Woodward releasing Top Secret programs, code names, 
documents, meetings, and the like.
    I would also like to include this full page ad in the New 
York Times today by almost 100 Australians entitled WikiLeaks 
are Not Terrorists. And it is a rather sober and poignant 
appeal to Australia's ally, the United States, to cool it.
    I would also like to include in the record the full article 
in Forbes magazine on the forthcoming disclosures in the 
hundreds of thousands of documents of corporate crimes, 
corporate abuses, corporate coverups that Julian Assange has 
assured Forbes would be forthcoming.
    And just to reduce our ethnocentrism, Mr. Chairman, I would 
like to note that WikiLeaks is not just a United States' issue, 
that there are people in Peru, Kenya, Australia, Iceland, 
Switzerland, and other countries who have benefited from 
WikiLeaks' disclosures of rampant corruption and injustice in 
those countries.
    Mr. Conyers. Without objection, your several documents will 
be accepted into the record.*
    *The material referred to was not received by the Committee at the 
time of the printing of this hearing.
    We have a record vote, and so we will take a brief recess 
and then resume the questioning of the Members. Thank you for 
your patience.
    Mr. Conyers. The Committee will come to order. Before 
yielding to Bob Goodlatte, I wanted to have just 2 minutes 
further for any of you who wanted to add to the discussion we 
were in mutually in terms of exchanging ideas and views on 
comments made by other panelists.
    Mr. Blanton. Mr. Chairman, I think we came to complete and 
total consensus during that point.
    Mr. Conyers. That is right. As my boy says to me, yeah, 
right, dad.
    Mr. Blanton. Yeah, right. Anybody want to weigh in? I am 
looking at Ken, because we had the best argument during the 
    Mr. Wainstein. That is right. But we kissed and made up. I 
will jump in on just one point, which is everybody has talked 
about the problem of overclassification. And I just wanted to 
address that. I agree that is the problem. No question about 
it. I actually applaud the President for his having undertaken 
an effort to review the classification processes in place and 
try to get more transparency and reduce the classification of 
    I guess my point would be this, though. That is a problem. 
And it is a problem in terms of the reality because it chokes 
off the flow of information that should go out to the public, 
information that truly isn't sensitive, but also it is a 
problem of credibility, because the government has less 
credibility when it says these are our secrets and only some 
fraction of them really are. But keep in mind that is one 
issue. And that doesn't completely solve this problem. So 
while, yes, we need to address that, the question I think that 
is out there now that has been posed by WikiLeaks is okay, now 
what do we do about organizations out there whose sole purpose 
is to try to get secrets? So I think of this like maybe a 
football team. A defensive coach on a football team is trying 
hard to--it doesn't defend well against the run. Well, you 
don't just fix that just by going out and getting a good 
defensive end, you also probably need a good middle linebacker. 
So if you look at dealing with overclassification as your 
defensive end, that is fine, that helps partly. But you are 
also going to need a good linebacker to try to stop the run.
    So my point is we also need to deal with--what do we do 
with these organizations that are kind of new out there on the 
scene like WikiLeaks that are doing their best to get our 
secrets and put them out there?
    Mr. Conyers. Nothing like a sports analogy when we are in 
complex matters. I would like now to turn to our good friend 
Bob Goodlatte, who is a senior Member of this Committee, and 
serves with great distinction.
    Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for 
holding this hearing. I think this is a very important subject, 
and this panel has been excellent in offering us a number of 
perspectives about this. I don't know that we will get quite 
the unity that Mr. Blanton claimed, but I nonetheless think 
there is probably increasing agreement on what are the problems 
and what are the limited solutions that we have. I would say, 
first of all, that the lack of security safeguards for 
protecting classified material is stunningly poor. And this 
problem is enhanced by the use of modern technology that 
spreads it around in places where I am sure many of the people 
who want something kept secret don't even know who is 
responsible for keeping the secret for them. And that is 
clearly the case with one member of the U.S. Army having access 
to, and apparently turning over, hundreds of thousands of 
    Secondly, I second those who have called for greater 
openness. There are without a doubt many, many things that are 
classified that should not be. And we have a problem I think 
with out of control expansion of what are being deemed secrets 
and for reasons that are not legitimate in terms of somebody 
wanting to do a little CYA instead of actually really 
protecting the national interests of the United States.
    Finally, we want to make sure that we are not suppressing 
information that should be made public. Nonetheless, it causes 
great concern to me that any outside organization would be put 
in the position of being the arbiter of what amongst hundreds 
of thousands of documents should be deemed secret, and 
therefore not put up on the Internet, and what should not. They 
don't have the professional ability do that. They don't know 
the far-reaching consequences that this will have on people's 
lives or on the national interests of this country. Nor do I 
get the impression that the leaders of this organization indeed 
care about what are the national interests of the United 
States. So we have to address this, first and foremost, by 
figuring out how to safeguard the things that are truly secret 
and release the things ourselves that we should be making 
public, should be disclosing.
    So, I guess first my question, I will go to Mr. Wainstein 
first, but please anybody else join in, in terms of talking 
about how we change the classification process, what can we in 
the Congress do legislatively? It seems to me this is primarily 
a function of the executive branch. But it very much concerns 
me that the executive branch has abused this power. And we need 
to change it. But without some standard, some measure of how 
these things are classified, what would you recommend that the 
Congress do to reassert our authority and get the 
classification process brought under control?
    Mr. Wainstein. I appreciate the question, sir. I guess as 
you pointed out, the first thing to keep in mind is 
classification is within the prerogative of the executive. So 
the folks in the executive branch, the ones who decide what 
should be classified and what shouldn't, and it all sort of 
boils down to the executive's responsibility to protect 
national security. That doesn't mean, however, that Congress 
doesn't have a role. In fact, I think we were talking about 
this on the break, I think if there is a silver lining to this 
issue coming up now about WikiLeaks, it is that not only might 
there be some salutary changes to the Espionage Act, and not 
only does it, I think, heighten people's awareness of this 
tension between security and openness, but it also I think 
might heighten people's awareness of the fact that there really 
is overclassification. And Congress I think can play an 
important role in emphasizing how important it is to the 
executive branch that overclassification be gotten under 
control, especially if the executive branch wants some 
legislation out of the Congress as it relates to the Espionage 
Act, let's say.
    The President, as I said, one of his first acts, I think it 
was early on in the spring last year, was to set up this task 
force and issue an Executive order covering overclassification. 
So my sense is there is a sincere effort underway. Keep in 
mind, however, that while there are, I think, the occasional--
    Mr. Goodlatte. Let me interrupt you because I have got a 
limited amount of time, and several people might want to 
comment. But if you have specific ideas about things that 
Congress ought do in this regard, we would welcome them. And I 
would ask any other member of the panel.
    Yes, Mr. Stone.
    Mr. Stone. Yeah, I don't accept this notion that this is in 
the executive branch's prerogative. It seems to me that the way 
in which the classification----
    Mr. Goodlatte. I agree that it is not, but I am looking for 
practical ways to solve the problem. I don't want to argue the 
point. If you have a suggestion for us to take legislatively, 
or through appropriations, or whatever, that would help us to 
reassert our authority in this area, we are interested. I would 
bet that is on a bipartisan basis.
    Mr. Stone. I would say for one that legislation that 
provided, for instance, that no document or information may be 
classified unless a judgment is made that the harm of 
disclosure outweighs--that the harm of disclosure outweighs the 
benefits of disclosure, as a statutory matter, that would then 
say that no one could be punished for revealing information 
that is misclassified under that standard would go a long way 
to clarifying what the classification standards are.
    Mr. Goodlatte. What if there seems to be some willfulness 
and deliberate intention to misclassify information that should 
be classified?
    Mr. Stone. Make it a crime.
    Mr. Goodlatte. Okay.
    Mr. Lowell. Congressman, I have two practical things if you 
consider any amendments to the bill.
    Mr. Goodlatte. Yes, sir.
    Mr. Lowell. First, I have already stated, which is to make 
sure that we distinguish among the various offenses so that the 
mishandling of properly classified information is included. 
Therefore, there is a distinguishing between the various forms 
of conduct. So Congress is basically telling the executive 
branch you are not going to be able to prosecute people at the 
same level for the various kinds of offenses. But the second is 
to do what the case law often says, be clear that there can be 
a defense given the intent of the potential criminal defendant 
for raising the fact something was improperly classified in the 
first instance.
    Mr. Goodlatte. All right. Anyone else? Mr. Nader?
    Mr. Nader. Just a couple of suggestions, Congressman. One 
is years ago I would say the U.S. Government should declassify 
anything it knows that the Soviets know so that you don't keep 
it from the American people. And they knew a lot about what the 
Soviets knew. But it gets to my point that one of the major 
players in the whole classification issue is the Congress 
itself. And when the Congress allows itself to be stratified 
between the intelligence committees getting classified 
information and no one else in Congress getting it, that is a 
way the executive branch co-opts the congressional role and 
increases the arbitrary classification discretion of the 
executive branch. So that is something to look into.
    And the second is that we should look back at what has been 
disclosed that was classified to educate ourselves to be able 
to more precisely respond to your question. Because there is 
just so many things that have been declassified later or leaked 
that were absurd to being classified. And that is a good 
tutorial to develop the kind of nuance that your question 
    Mr. Goodlatte. Thank you. Mr. Blanton?
    Mr. Blanton. Congress has an extraordinary track record in 
pushing back against overclassification. The greatest success I 
would say in the last 15 years has been the Nazi War Crimes Act 
that pushed out millions of pages of documents that shouldn't 
have been kept secret all of those years that showed how we had 
hired and sheltered Nazis in our own country. Congress ordered 
that, Congress built the interagency working group that ran it. 
You should apply the same standards that were in that statute 
to all historical records, anything more than 25 years old, 
which under the Executive order is supposed to be treated 
differently. Apply the Nazi process. Put an interagency working 
group with some oomph behind it and congressional oversight 
behind it to make it work. You could break loose that huge 
backlog of those old secrets that is one of the hugest, biggest 
credibility problems of the current system. You could make a 
huge difference.
    You could empower the Public Interest Declassification 
Board, that has appointees from the executive and the 
legislative branch, to not just make recommendations for 
changing the system, but really even order the release. You 
could provide new funding for the National Declassification 
Center, which is out at the National Archives, just started in 
May. Real good idea. They hired a career CIA employee to help 
oversee it, but they are facing backlogs of 400 million pages 
of stuff that should have been out 30 years ago. They can't 
even begin to get their arms around it. A little oversight 
there I think would really help.
    And I think finally, to pick up on Ralph Nader's comment, 
currently the executive branch treats requests for information 
from Congress, only the Chairs of Committees are treated as 
constitutional requests for information. If you are a Member, 
not a Chair, your request for information is treated as if it 
was a Freedom of Information request. So join the line that I 
am in. All right? I am sorry, you have got a higher 
constitutional duty than I do. And you ought to have the right, 
all Members of Congress ought to be treated the way Chairs of 
the Committees are treated today.
    Mr. Goodlatte. Mr. Vladeck.
    Mr. Vladeck. Just real quickly, I echo everything Mr. 
Blanton just said. I would just point you to one more example 
of Congress taking an active role in this area, which is the 
Atomic Energy Act of 1954. So here we are not talking about 
historical records, we are talking about I daresay what we 
would all agree are some of our most important national 
security secrets. And Congress did not leave it to the 
Executive, Congress actually provided detailed statutory 
procedures to be followed, and indeed to be punished in the 
    Mr. Goodlatte. Thank you. These are all very good 
    One other point. The allegation has been made, and I again 
don't know the truth of this, that WikiLeaks is an organization 
that has not only released the information on the Internet, but 
that has been engaged in the solicitation, the facilitation, 
maybe even the payment of--I don't know--pay for information or 
pay to facilitate the acquisition of the information. But do 
any of you have any thoughts on whether there is a need to 
change the law in this area, or is there adequate law right now 
against what most people would agree would cross the line 
between reporting and espionage?
    Mr. Nader. First of all, there is a lot more we need to 
know, Congressman----
    Mr. Goodlatte. I agree with that.
    Mr. Nader [continuing]. That we don't know. But for 
example, obviously Amazon, Visa, MasterCard, with their denial 
of service in recent weeks, of WikiLeaks, was pressured by the 
U.S. Government. The U.S. Government did not say cut off the 
New York Times or the Washington Post. And that is a tip of an 
    Mr. Goodlatte. I appreciate that that is an issue, Mr. 
Nader, but it doesn't answer my question, which I have already 
exceeded the time. Does anybody have any comments on the issue 
of whether or not we need to strengthen our laws regarding the 
kind of things that were done or alleged to have been done by 
WikiLeaks to acquire this information or any other information 
from the government? And I would contrast from what they 
acquire from a corporation.
    Mr. Wainstein. If I may, Mr. Goodlatte, Congressman 
    Mr. Goodlatte. Yes, Mr. Wainstein.
    Mr. Wainstein. I don't know whether WikiLeaks did go about 
trying to procure or pay for the information. But if there was 
any complicity between WikiLeaks and the person who actually 
pulled the information out of the government, then WikiLeaks 
could be charged as an aider and abettor, or a conspirator of 
the leaker. Then WikiLeaks would not enjoy whatever additional 
First Amendment protections they have as a news organization. 
Rather, they are charged as a conspirator or aider or abettor 
of the person who was the leaker. That would be an easier case 
to make because then they would be charged like the leaker and 
like the four other leak defendants that have been charged by 
the Obama administration under the Espionage Act in a way that 
I think is much less problematic to people because they are not 
going to be charged as a press organization, rather as someone 
who is complicit with leaking.
    Mr. Goodlatte. That is under current law, correct? Mr. 
    Mr. Vladeck. I agree with that. All I would add is it may 
not be as problematic. It would certainly be as unprecedented. 
The Espionage Act has not previously been used to my knowledge 
to prosecute someone on an inchoate theory of liability as an 
aider, abettor, acoconspirator, et cetera. The text of the 
statute may support it. I do think we would still wade into 
some of the issues you heard us describe this morning about 
applying this antiquated statute to this novel theory.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Conyers. Thank you very much, Mr. Goodlatte. We now 
turn to the gentleman from Virginia, Chairman of the 
Subcommittee on Crime, Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman. And thank you for 
calling this hearing. One of the problems in passing criminal 
laws is there are a lot of challenges. If we pass a criminal 
law, we expect it to be challenged on its constitutionality, so 
it has to be consistent with precedent. And we have the 
Pentagon Papers, which alerts us to the fact that anything we 
do in this area is going to be problematic. Also, the law has 
to be precise. It can't be subjective after the fact, well, in 
this case I think it is bad enough to prosecute. The conduct to 
be proscribed has to be precise.
    I am inclined to think that what happened in the WikiLeaks 
situation ought to be illegal, but I think we have a consensus 
on the panel, if nothing else, that we ought to take our time 
and get this thing done right. Let me just ask, I am going to 
start a couple of issues and just ask everybody to kind of 
respond to them, one of which my colleague from Virginia just 
talked about, and that is should it matter whether you helped 
to obtain the information or you got it slipped under the door, 
you didn't have anything to do with it in terms of your 
publication? And does it matter if you knew full well that it 
was classified? And should it make a difference that it should 
or should not have been classified?
    And second, we have heard a lot about the intent to harm or 
whether it actually harms. That is going to have a real problem 
with practicality in criminal law. Because whether or not the 
leak actually harmed, I mean if you did something to sabotage 
the Iraqi war and we started that debate, there would be a lot 
of people who would conclude that you did more good than harm, 
although obviously if you lose that debate you have committed a 
crime. And whether or not even though it did harm, you didn't 
intend for it to harm. Should that be a defense? And the fact 
that you redacted some of it but didn't redact all of it, 
should that help you or not? And part of this is from a 
practicality point of view, you have been arrested for 
publishing the material and you get an opportunity to debate 
the Iraqi war before a jury, and if you win the debate you are 
not guilty? If you lose the debate you are guilty? If you are 
lucky enough to be in one jurisdiction where they hate the 
Iraqi war you are in good shape leaking the material. If you 
get stuck in another jurisdiction you are in deep trouble. Same 
crime, different jurisdictions.
    From just a practicality point of view, can you talk about 
some of these kind of issues? And I just yield the panel the 
balance of my time.
    Mr. Lowell. Congressman, let me give you quick answers to 
four, and hopefully start the discussion back about the 
experience about these cases. Theoretically, whether or not a 
media organization or a third-party are protected either by 
free speech or free press or petitioning the government changes 
the dynamic when that organization is, as you or others have 
said, or Mr. Goodlatte has said, complicit in the theft or the 
leak on the front end. The problem, again, is the slope. Press 
people cajole, encourage, flatter, talk to people in the 
government all the time. They are actively engaged in trying to 
find out that which the government does not want to disclose. 
They are involved. They are not taking out a National Enquirer 
check of a thousand dollars and paying for the information. We 
think that is a clearer line, although under the First 
Amendment I am not sure it is. But where do you draw the line 
then when a journalist is doing her or his job very well and is 
figuring out ways to cajole somebody to say that which they are 
trying not to?
    So theoretically, I think yes, but I think practically no. 
I think the issue of whether the media or the third-party or 
the protected entity knows something is classified, well, the 
present law doesn't make the disclosure of classified 
information the crime. It makes disclosure of what is called 
information relating to the national defense a crime. And we 
are now seeing with classified overclassification that the fact 
that it is classified may give a presumption that there is a 
potential danger in its release. But it is the beginning of the 
conversation not, and I don't think that is going to be a 
meaningful distinction today. When you redraw this law someday, 
it may be one, as again Congressman Goodlatte was saying, how 
can you prevent overclassification by making sure there is a 
defense, for example, that if something is improperly 
classified? So therefore, knowledge that it is classified is 
not really going to be dispositive.
    The intent is very difficult. So you are right, there 
shouldn't ever be a law that says whether or not the outcome 
was what you intended; that is, I intended to submarine the 
policy of Iraq, consequently I did what I did and it didn't 
submarine the policy. Or in retrospect, it was better to do 
than not do. It has to be at the front end. It has to be 
intent. Was your intent to.
    Now, that is, as you know, the same in every criminal case. 
Trying to divine a defendant's intent by whatever their direct 
statements or circumstantial evidence are is going to be the 
challenge even in a classification kind of a case. So again, 
somebody saying to the government, gee, should I redact? 
Somebody who meets in public, somebody who does things overtly 
as opposed to somebody who wears a disguise and is dealing in 
drop boxes in the middle of the park. You can tell the 
difference between what somebody's intent is by their behavior.
    And finally, you raised a really excellent last point--they 
were all excellent, but this one as a trial lawyer--when you 
are divining somebody's intent and you are saying I felt like I 
needed to expose the fact that there were no weapons of mass 
destruction, that plays differently to a jury in Alexandria, 
Virginia, than it might in Washington, D.C., than it might in 
some other place in the country. And that is why, among other 
reasons, at least the presumption is so many of these cases are 
brought in the Eastern District of Virginia, or at least the 
prosecutors believe they have a more sympathetic jury.
    Mr. Vladeck. Could I just add briefly? Congressman, you 
also raised the specter of putting the jury in the position of 
deciding whether something was rightly classified or not. And I 
think it is important to keep in mind that if Congress were to 
add an improper classification defense into any revision of the 
law, you are still putting an incredibly high burden on the 
putative defendant who has taken quite a substantial risk if he 
really thinks that at the end of the day his freedom, whether 
he is going to go to jail for 25, 30 years, depends on his 
ability to convince a jury that something was wrongly 
classified. So I think, you know, that is not a legal argument, 
but I do think that that puts a pretty heavy thumb on the scale 
of why that would not open the door to massive leaks by 
individuals who thought that things were wrongly classified. 
Those are pretty severe consequences to take such a long shot 
    Mr. Schoenfeld. Congressman, I would just add to what my 
colleagues have said. A number of them have suggested we should 
alter the law to have an intent to injure. And this was one of 
your points. I think there is reason to believe that would open 
the floodgates for leakers, that there are many salutary 
reasons for leaking, but there could be considerable 
disagreement about what actually is salutary. The current law, 
which demands you have reason to believe it could injure the 
United States, seems to capture behavior that we would really 
like to keep from occurring, keep genuine secrets secret.
    Mr. Scott. What burden of proof would you have if somebody 
honestly believed that this was good for the country, although 
some juries would conclude it is bad for the country? I mean do 
you have to prove--would the prosecution have to prove beyond a 
reasonable doubt that he did not believe that what he was doing 
was the right thing?
    Mr. Schoenfeld. I am not sure of the answer to that.
    Mr. Stone. I think it is important here again to 
distinguish between----
    Mr. Scott. So are we talking about a good faith exception 
to leaking?
    Mr. Stone. I think it is important to distinguish between 
the leaker and the publisher. The leaker can be regulated 
consistent with the First Amendment much more aggressively. And 
there I think it is sufficient to say that knowing disclosure 
of classified information that is properly classified is 
    Mr. Lowell. Congressman, one more thing on your last point. 
You know, the present statute and the glean by the courts as to 
the intent requirement to show, as Mr. Schoenfeld pointed out, 
that you had a belief that it could injure, whether that is 
good enough, let me tell you why it is not good enough. What 
does could injure mean? What if you believed there was a 1 
percent chance that it could injure and a 99 percent chance 
that it wouldn't? Where in that slope does somebody become a 
felon subject to 20 years in jail? And that is difficult, 
especially difficult in a First Amendment context.
    Mr. Vladeck. Congressman, I think the short answer is you 
don't write one statute, you write three, right, and that you 
have one statute that is focused at espionage and spying, you 
have one statute that is focused on leaking, because as my 
colleague, Professor Stone, points out, you can impose higher 
burdens, you can hold government employees to a higher 
standard, and you have a third statute that deals with private 
citizens with no intent to harm the national security of the 
United States. Now, that statute I think is the incredibly 
tricky one to write. But no matter how it is written, I think 
having those categories separated out would be such a 
substantial improvement. And recognizing that the burdens 
should be different in those three cases would be such a 
positive development as compared to the status quo, that really 
I think, you know, almost anything would be beneficial.
    Mr. Stone. There is great benefit in having a very rigorous 
and narrow statute to punish the publication of the 
information. Because that puts pressure on the government to 
keep the secret in the first place. So they can't punish 
WikiLeaks because they don't have the requisite intent or they 
haven't caused the requisite harm. And if they know that and 
they are serious about the secrecy, they will then take the 
steps necessary to keep the information secret. In that 
dynamic, I think it is very important not to make it too easy 
for the government to try to prosecute the ultimate speaker. 
Because if they can do that, then they will get lazy and sloppy 
on the question of secrecy itself.
    Mr. Conyers. Thank you very much, Bobby Scott, for that 
interesting exchange. I turn now to the distinguished gentleman 
from Iowa, Steve King.
    Mr. King. Thank you, Mr. Chairman. I do thank the 
witnesses. This is an outstanding lineup of witnesses here. And 
I would direct my first question to Mr. Lowell. Caught my 
attention in speaking about intent. And in this discussion that 
we have had, this dialogue about intent, I would be curious as 
to if you had separate intents and maybe three almost 
simultaneous, identical acts by different entities with 
different intents, are they still guilty of the same crime?
    Mr. Lowell. To put flesh on the bones, Congressman King, in 
my brief introductory remarks today I said the statute--I was 
speaking about section 793 specifically--could apply, again, 
first to the government employee who had the confidentiality 
agreement and then said something or did something that she or 
he should not have. And then you have the person he is doing it 
to. It could be a foreign policy wonk, it could be somebody 
else. And then you could have the reporter who, as I said, 
overheard the conversation and published an article. And they 
are all responsible for releasing the exact same information. 
They may be releasing it in different ways. Ironically, the 
last hearer is going to disclose it to the most amount of 
people. The first person in the confidentiality agreement is 
disclosing it to the least number of people. And yet it is 
easier to prosecute the first, as Professor Stone and others 
said it should be, than the last. So with intent let's take 
that intent against the last three. As to the government 
employee, he or she knows that based on the confidentiality 
agreement, and whatever he or she does, that it is not supposed 
to occur, and there is very few excuses to go outside of 
channels to do it. If you protect whistleblowers, then putting 
that aside, the intent requirement is easier to prove.
    To the person who is not in the confidentiality agreement 
and is actively engaged in the exchange, as were the defendants 
in the so-called AIPAC case, that was very problematic. Because 
on Monday, White House officials or State Department officials 
brought them in to discuss foreign policy that they wanted them 
to know, and then 3 days later somebody at a different level 
called them on the phone and talked about the same policy that 
was the subject of their indictment. Their intent, therefore, 
could have been proved by showing that what was legal on Monday 
should not be illegal on Wednesday.
    And then finally, when you get to the point of the media, 
that is where all the comments of the intent requirement, 
depending on their complicity in the original leak, will make a 
big difference.
    So you can take the same act and have three different 
standards of intent and still survive, I think, under a 
constitutional scheme.
    Mr. King. Mr. Wainstein, your comments on that?
    Mr. Wainstein. Congressman King, I actually agree with the 
idea of having sort of this tripartite approach Steve Vladeck 
and Abbe have described. I think narrowing the provision for 
each of these different categories is going to make a more 
targeted piece of legislation.
    Mr. King. Then let me take this to the injury to the United 
States. What does that mean and how can that be proven?
    Mr. Wainstein. That is also another sticking point in the 
whole WikiLeaks situation. I think you have heard a little bit 
of that here today. The question of, okay, how damaging was it? 
Maybe back in the first tranche that came out about DOD, the 
DOD documents about Afghanistan, there were informants' names, 
et cetera, et cetera, troop movements and the like. A lot of 
that stuff ended up getting taken out later on. It is obviously 
a sliding scale. And when you are dealing with the First 
Amendment, one of the justifications, especially if you are 
looking to prosecute a news organization, an organization sort 
of in the shoes of a news outlet, you have to look at whether 
you are justifying the prosecution and the incursion on their 
press activities in order to address real harm to the Nation. 
And that is one of the big issues I am sure the Department is 
looking at right now, going through all the things that have 
been released through these WikiLeak disclosures and seeing 
what sort of identifiable pieces of damaging information are in 
    Mr. King. I don't know that I am clear on this, and I turn 
to Mr. Schoenfeld. Do you believe the Espionage Act should 
apply to a foreign defendant that is operating outside the 
United States?
    Mr. Schoenfeld. I think it could and should be applied. And 
I think that what he has done, what WikiLeaks has done is to 
certainly endanger, as a number of ranking officials have said, 
endanger our forces and endanger allied forces, civilians in 
Afghanistan and Iraq. The idea that the United States has no 
recourse in the face of this seems to be unacceptable. And I 
think looking at the law, that says whoever discloses.
    Mr. King. And while you have the microphone, and for the 
record again I would appreciate it if you could just summarize 
those five points that you made in the closing part of your 
opening statement.
    Mr. Schoenfeld. If I might take the liberty of looking at 
them. More attention to declassification. Attention to giving 
legitimate whistleblowers viable avenues other than the media 
to which they can turn. Reestablishing deterrence of leakers in 
the government so that those who leak have reason to fear that 
they will be prosecuted. Bringing down the weight of public 
opinion against leakers certainly, and against those who 
publish vital secrets, not just ordinary kind of secrets that 
are the daily fare of our American journalism. And in some 
extraordinary cases, prosecution of media outlets that publish 
secrets which endanger the public.
    The classic case that has been mentioned here is the 
Chicago Tribune case. But there are other cases that have 
approached that line in recent years. The Pentagon Papers case, 
the documents that Daniel Ellsberg turned over to the New York 
Times were historical in nature. There was not a single 
document in that collection that was less than 3 years old. 
Some of the material that has, say, been published by the New 
York Times in the last years since 9/11 have been operational, 
ongoing intelligence programs like the SWIFT monitoring 
program. That seems to skirt the line. I ride the New York City 
subways. And so do millions of others. And there are people out 
there determined to bomb those. And this is a program designed 
to stop those people that was compromised. I think the 
seriousness of that, and I think the irresponsibility of 
journalism in some cases has been extraordinary in this period. 
Much, much different from the kinds of things that the Times 
published in 1971.
    Mr. King. Would you care to speculate on their motive for 
releasing information that is viewed as classified?
    Mr. Schoenfeld. There were two really substantial leaks in 
that period. The first was the NSA warrantless wiretapping 
program. And there the Times had an argument that this was a 
violation of the FISA Act, and they wanted to bring it to a 
public stage. I think there is a legitimate debate about that. 
And they believe I think that they performed a public service. 
When we come to the SWIFT program, they had been warned by 
ranking officials, Democrats, Republicans, I think Lee 
Hamilton, one of the cochairmen of the 9/11 Commission, not to 
publish this material, and they went ahead. And I don't think 
they have offered a very convincing justification for doing so. 
One of the reporters, Eric Lichtblau, said that the story was 
above all else, and this is a quote, an interesting yarn. Above 
all else. Now, for stuff of such gravity, I think one can't 
imagine a more trivial rationale.
    Mr. King. That answer says selling newspapers. Gentlemen, 
my clock went red a while back. But I appreciate all your 
testimony, and I yield back.
    Mr. Conyers. I am pleased to recognize the distinguished 
gentlelady from Houston, Texas, a very active Member of the 
Committee, Sheila Jackson Lee.
    Ms. Jackson Lee. Mr. Chairman, let me thank you very much. 
And I don't want to be presumptuous to suggest that this may be 
the last hearing of this session, because I know that this 
Committee works into the very long hours into the night or into 
the session. But let me thank you very much for your astuteness 
in recognizing the importance of this hearing for those of us 
who are in a quandary, if you will. I sit on the Homeland 
Security Committee and have spent many hours in classified 
meetings in the crypt, if you will, listening to the array of 
threats against this country, and frankly, around the world. 
But I may also, or it comes to mind that if you become too 
restrictive and you have a law that is ineffective in the 
espionage law, you also impact what can be the modern day, if 
you will, whistleblowers. And I know that there has been a 
distinction made with the Pentagon Papers, sort of after the 
fact reports, as opposed to these documents that are current 
and in place.
    So I would like you gentlemen to help me with the quandary 
that I am in. To limit information limits the potential 
effectiveness of government.
    But on the other hand, I don't know whether or not we had a 
hearing, Mr. Chairman, and I am sure we did, and my memory 
fails me, but I remember distinctly a sitting Vice President 
blowing the cover of an active duty CIA agent. And it was 
interesting to hear the response in that instance. This 
person's cover was blown, and that sitting Vice President just 
thought that he was completely right, or either didn't admit it 
or had someone else, unfortunately, be the fall guy for it.
    But I think in the Judiciary Committee it is important to 
really understand the law. There is some dispute. The WikiLeaks 
owner, leader indicates that they did write the London 
ambassador and sought to have certain information redacted and 
no one responded. But there is a November 27 letter from the 
State Department saying don't release anything.
    Abbe, it is good to see you again. Help me with that. 
Because there was an effort made. I understand the difficulty 
of the espionage law is knowing that you are disclosing 
classified information. Does it have any provision for someone 
who tried to work with the appropriate persons? Because I guess 
I see a difference of opinion. I tried to work with you, you 
did not want to work with me. What is the culpability?
    I am going to yield to you first. I just want to talk about 
the law, and how does that relate to that specific action?
    Mr. Lowell. Very good to see you, Congresswoman, again. 
Let's distinguish where the law is and how it is applied versus 
to what people are saying could be done to improve it. So where 
the law is and where it applies, the elements that you are 
addressing goes to the following issues: When somebody is 
accused of violating 793 or 798 under the present Espionage 
Act, if they are a government employee, we have discussed the 
fact that they don't have the same back and forth ability to 
show that they did not have a reason to believe that their 
conduct would injure the United States or benefit an adversary 
or a foreign country. So in the context that you are asking and 
one that this Committee is addressing, which for example might 
be the WikiLeaks case----
    Ms. Jackson Lee. Outside of that sphere.
    Mr. Lowell. Outside of that or the one you raised. So then 
the question is the back and forth between Julian Assange to 
date and the other newspapers and the government officials, 
here is what I have, what would harm? what would you like 
redacted? goes to something. What it goes to is when the 
government prosecutes somebody in that position, that person--
the government has to prove beyond a reasonable doubt a certain 
intent. The defendant in that situation will be able to raise 
that kind of conduct to show that the intent was not one that 
had in the mind a reason to believe to injure, but was quite 
the opposite, that he was doing his best, recognizing what he 
and others would say was his First Amendment duties to do what 
was right and also showing his intent was a good one.
    The problem is that this is subject to a prosecutor 
deciding I am still going to charge and let a jury decide that 
the intent was okay, whatever jury instructions a judge will 
give, and as one of the other Members said, the differences 
between trying that case in jurisdiction one versus 
jurisdiction two on something that is just called intent. And I 
hope that is responsive.
    Ms. Jackson Lee. It is. And I would like Professor Stone to 
take a stab at that. And Mr. Lowell, and I want to call him 
Abbe, we worked in the past, mentioned the First Amendment 
rights. Do you want to give me some sense of where that plays a 
    Mr. Stone. Sure. Again, I think that the government's 
ability to regulate the activities of its own employees who 
have signed secrecy agreements is considerable and that that is 
where the focus should be, on keeping that information secret 
if it really needs to be kept secret. That once we move into 
the realm of public discourse, then we should be extremely 
careful. And the First Amendment demands that we be extremely 
    Mr. Schoenfeld a number of times has identified the Chicago 
Tribune incident from World War II, where the Tribune published 
information that revealed the fact that we were aware of a 
Japanese secret code and we had been using that as way of 
advancing our own war aims. And had that information been made 
available to the Japanese, as it could have been given the fact 
that it was published, that would have been in fact a situation 
where there was a clear and imminent danger that posed a grave 
harm to the United States. We would have lost a pivotal benefit 
in fighting World War II. And that seems to me the paradigm 
case for a situation where the knowing disclosure of that sort 
of information can be subject to criminal prosecution.
    But the key to that example is that it happens once a 
century. Nothing in the WikiLeaks case comes close to that. And 
it is important to say that is the situation where you can go 
after publishers or disseminators of information who are not in 
a special relationship to the government. And that almost never 
happens. And when it does happen, it merits punishment. But 
beyond that, we should be focusing our attention on the 
situation of keeping information secret in the first place, in 
house, in the government where secrecy is necessary.
    Ms. Jackson Lee. I like that. Mr. Schoenfeld, you have a 
different perspective, but I think both of us have I think the 
same goal. As a Member of the Homeland Security Committee, I 
don't fool around with potential terrorist threats and/or the 
new climate we live in. But my quandary is if we freeze down on 
WikiLeaks, we freeze down even on information that may help us 
in the war against terror. And I think the professor makes a 
very definitive point. I am embarrassed that the materials were 
accessible. How do you respond to that idea?
    Mr. Schoenfeld. I agree with Professor Stone that the 
Chicago Tribune case really is of a different order problem, 
that there would have been the kind of immediate and 
irreparable harm that really does not flow from anything that 
appears in the WikiLeaks documents. But that is not to say that 
there is not significant harm from that release. I mean I agree 
with you we are all better informed now than we were 2 weeks 
ago before those documents appeared about what our government 
does. There is no question there is a public benefit that flows 
from that kind of leak. However, there is the damage done from 
particular documents themselves which we have only really begun 
to understand. There are so many different kinds of 
ramifications from these documents.
    But what also has happened is a single blow to the ability 
of the U.S. Government to conduct its diplomacy in secret, 
which is a critical task for keeping the peace. If our 
diplomats or foreign diplomats can't speak candidly to American 
government officials, we are not going to be well informed 
about what is going on abroad. 
    Ms. Jackson Lee. My message then is first of all, I want 
our diplomats to speak candidly, and I want our government to 
come into the world with 21st century technology so that a 
young military personnel, 23 years old, doesn't have the 
ability to hack into it. They will handle his case, and I don't 
think we are discussing that right now. But we do have a burden 
and a responsibility. You are absolutely right. The candidness 
I think is appropriate. I understand the pundits have indicated 
that we look good, but we don't know what else is coming. We 
look good because we were consistent in our cables to our basic 
policy. That puts a smile on my face. But the point is that if 
lives were put in jeopardy--and again I go back to a Vice 
President that blew the cover of a CIA agent. You know, to me 
that is a direct threat on some individual's life. If lives 
have been put in jeopardy, we have a different, if you will 
framework to operate under. But your message to me is that we 
now have to get more sophisticated in how we do it.
    I see my time. Can I just get the last three witnesses to 
comment? And I think I missed Mr. Wainstein. But I am going to 
go this way and then you, sir, if I could just--if you could 
just quickly. The dilemma, there was an inquiry, and I think 
Mr. Lowell made it clear that someone's intent is in play here. 
Mr. Vladeck.
    Mr. Vladeck. Congresswoman, I think that is right. The only 
thing I would add, and you mentioned this at the beginning of 
your questioning, is if we are going to focus on the person who 
is doing the leaking, if we are focusing on the government 
employee, as I think your colloquy with Professor Stone 
suggested, the other piece of this is whistleblowing.
    Ms. Jackson Lee. Right.
    Mr. Vladeck. And whether and to what extent current 
whistleblowing laws are adequate to provide opportunities to 
government employees who have come across what they think is 
wrongdoing to have remedies other than going to their local 
newspaper. With that in mind, I think it is just worth noting 
that I believe last Friday----
    Ms. Jackson Lee. Right, the new appointed person.
    Mr. Vladeck. S. 372. You know, I am not an expert on 
Federal whistleblower laws, but I do think that recognizing 
that that is part of this conversation, and that strengthening 
Federal whistleblower laws, especially as they apply to the 
intelligence community, could actually meaningfully advance 
this conversation as well by reducing the number of occasions 
where government employees will feel the need or the lack of 
other remedies when they come across wrongly classified 
    Ms. Jackson Lee. If you would, please. Thank you.
    Mr. Blanton. Congresswoman, I think that is a very 
important caveat to what Professor Stone was saying. That the 
government has a lot more power to regulate the employee than 
it does to regulate the media. And I would add 
overclassification, as does Gabriel Schoenfeld, to that. If we 
can't deal with the overclassification and we can't really 
protect serious whistleblowing, then I think the government is 
not on such solid ground on coming down hard on its own 
employees and regulating them in that more severe way that 
Professor Stone says is constitutionally valid.
    Ms. Jackson Lee. Mr. Nader? Thank you. Welcome. Thank you 
for your service to this Nation.
    Mr. Nader. Thank you. I think the point you earlier made, 
that the disclosures by WikiLeaks can actually enhance our 
national security. The disclosures do damage. They do damage to 
government violations, to war crimes, to torture, to the kind 
of policies that inflame and expand the opposition to us by 
people who never had any enmity to us. And we can all cite 
Peter Goss and General Casey and others who basically pointed 
that out, that our presence in these countries, if we are not 
careful, provides fertile ground for more opposition and more 
risks to our national security. So in that sense, these leaks 
build up public opinion and congressional engagement to hold 
the government's feet to the fire as a government under the 
rule of law and under constitutional standards in its foreign 
and military policy.
    Ms. Jackson Lee. The Chairman has been very kind, if you 
could just finish, and I will finish.
    Mr. Wainstein. Thank you very much, Congresswoman. If I 
could just associate myself with what Steve Vladeck said about 
the whistleblower laws. They are a relatively new animal over 
the last few decades, providing protections for people who see 
something wrong within their agencies and want to disclose it. 
And not only do we need to make sure we have sufficient laws to 
protect whistleblowers and prevent retaliation, but also 
procedures, user-friendly procedures in those agencies so that 
if I am in an agency, I see something corrupt or wrong and I 
want to raise it up, it is easy for me do so. I don't have to 
worry about retaliation. That is important, because obviously 
if you have the law and the procedures in place that make it 
easy and seamless to do that, then there is no reason that 
person needs to go to the press. So in addition to looking at 
the laws, any oversight that looks at the agencies, especially 
the intelligence community, to ensure that it is easy for 
people to blow the whistle without fear I think would be 
    Ms. Jackson Lee. Thank you, Mr. Chairman. Just to you, Mr. 
Chairman, this is a bipartisan hearing. And I just simply want 
to say maybe as we go into the next session, in a bipartisan 
way we can look at whistleblower, or as you well know, the No 
Fear Act that needs to be--which has to do with protecting 
government employees against whistleblower comments. And I hope 
we will do that.
    Thank you very much, Mr. Chairman. I yield back.
    Mr. Conyers. The Chair recognizes the Ranking Member of the 
Courts Subcommittee of this Committee, the gentleman from North 
Carolina, Howard Coble.
    Mr. Coble. Thank you, Mr. Chairman. Mr. Chairman, I want to 
commend the panelists for their durability today. They have 
hung tough with us. I appreciate that.
    Mr. Wainstein, you mentioned the possibility of enacting a 
provision to prohibit the disclosure of classified information 
by government employees regardless of the damage to the 
national security. What are the pros and cons accompanying such 
a statute? And do we run the risk of inviting more 
classification than currently exists in an effort to prevent 
dissemination of, say, unsavory but not necessarily damaging 
    Mr. Wainstein. That is a very good question, sir. And that 
actually harks back to something that Abbe Lowell mentioned 
about how back in 2000 there was--that statute was passed, 
actually, and then the President Clinton vetoed it. And the 
statute basically said if you are a government employee, you 
sign that nondisclosure agreement and you disclose classified 
information, something that says secret, then you are guilty.
    The pro is that that is very clean. You don't have to show 
damage, you don't have to get into this back and forth of 
whether it was damaging to disclose secrets about the Iraq war 
or good because the Iraq war needed to be examined more 
closely. It is just clear. You have a responsibility as a 
government employee to protect classified information. You 
willingly and knowingly disclosed it, you are guilty. So that 
is on the pro side.
    The con side, of course, is that, as you pointed out, there 
is so much information that is classified that it would be 
chilling to many government employees when they are going to 
talk to people that, gee, all it takes is one step over the 
line, and I get into one iota of classified information and I 
am guilty. You know, if I intentionally disclose that, I can't 
talk about anything. And so one of the cons is that it will end 
up that people will be scared to talk to the press, people will 
be scared to talk to Congress because they are worried they are 
going to trip over classified information. And you might have 
people who will be prosecuted for information which though 
classified, as you pointed out, really might not be all that 
sensitive. It just might be either a matter of mistaken 
overclassification or something which is embarrassing but not 
really sensitive.
    Mr. Coble. Thank you for that, sir.
    Mr. Schoenfeld, is it your belief that the First Amendment 
confers on journalists an absolute right to publish classified 
information or government secrets?
    Mr. Schoenfeld. No, it is not. And I think from what I have 
heard on the panel, there is some agreement with me that under 
some circumstances journalists can be prosecuted under the 
espionage statutes. To hark back to the Chicago Tribune case, 
we have a case where I think the espionage statutes would apply 
if the story came out that cost the lives of tens of thousands 
of U.S. servicemen and prolonged the war. And the Supreme Court 
of course in the Pentagon Papers case, five of the nine 
justices, as I had noted earlier, did suggest that if a case 
came to them not as a prior restraint case, but after the fact 
as an Espionage Act prosecution or a Section 798 prosecution, 
they would strongly consider upholding a conviction if the 
material at issue was material that Congress had indeed 
proscribed under the statutes.
    Mr. Coble. I got you. Thank you, sir.
    Professor Stone, we touched on this but let me run it by 
you again. Does WikiLeaks enjoy the same protections as 
traditional journalism organizations, A? And in the Internet 
age, how do we distinguish between traditional media and the 
new media? And does the law contemplate such distinction?
    Mr. Stone. I think realistically, it is impossible to do 
that. The Supreme Court itself, in interpreting the First 
Amendment, has always refused to define who the press is. And 
in any event, the speech clause, as has been noted, is an 
independent protection. So although that may be frustrating, I 
think as a practical reality there is no way to distinguish 
WikiLeaks from the New York Times or from a blogger. They are 
all part of the freedom of speech that the First Amendment 
protects. And that doesn't mean that the conduct that they 
engaged in may not be treated differently depending upon what 
they actually do. But I think in terms of the nature of the 
institutions or individuals, as a practical matter that is not 
going to be a sustainable line of inquiry.
    Mr. Coble. Thank you. Thank you, gentlemen, for being with 
us today.
    I yield back, Mr. Chairman.
    Mr. Conyers. Thank you, Mr. Coble. I now turn to Bill 
Delahunt, the distinguished gentleman from Massachusetts.
    Mr. Delahunt. Thank you, Mr. Chairman. And this has been a 
very informative discussion. And we are talking about 
legislation and, you know, the problems of drafting appropriate 
language and the issues of intent, et cetera. But I still go 
back to what I said initially. Until Congress, and particularly 
Members of this Committee, address the issue of the 
classification process, we are operating in the dark. We don't 
understand the classification process. I wonder if anyone on 
the panel really does in terms of the steps. Who classifies? I 
heard some of you use the term ``improper classification.'' Who 
makes that decision? I have heard the term ``authorized 
leaks.'' What in the hell is an authorized leak? Is that a leak 
that, you know, someone in the Administration can do but we 
can't? What struck me again, when I chaired the Oversight 
Committee in Foreign Affairs, was we would get material that 
was redacted, page after page after page after page. All you 
knew or all you saw was the number. And then of course the next 
day you would read in the newspapers. But I guess that was a 
good leak as opposed to a bad leak.
    So I hope--and I would direct this to my colleague from 
Iowa--I hope with the new Congress that Congress conducts a 
series of hearings where it demands an explanation of the 
process itself. Are we going to rely on a bureaucrat, you know, 
at a lower level to do the redaction? Who does all this?
    Help me with the mystery. Can anyone here? Maybe I see you, 
Abbe, nodding your head. Give it a shot.
    Mr. Lowell. I can't answer that question as a blanket 
fashion across all agencies and all parts of the Department of 
Defense and all places in the world. But I can answer it based 
on the materials that I have seen on the cases I have 
litigated. And you are raising a point. So in the AIPAC 
lobbyist case, by the time we were done and getting ready for 
trial there was no fewer than, I don't know, 4,000, 5,000 
pieces of paper that were in a classification mode at one level 
or another. There is an Executive Order which has criteria for 
why something is classified, very specific categories of the 
potential harm that the release of that document or information 
could cause. Like every other thing you have been talking about 
today, those aren't microscopic definitions in a mathematical 
way. They are subjective to begin with. One, for example, talks 
about interference with the Nation's foreign policy or foreign 
relations--or relations with a foreign country. I mean, what 
    Mr. Delahunt. What does that mean.
    Mr. Lowell. Well, I mean, then the second question is who 
gets to decide you ask?
    Mr. Delahunt. That is the key.
    Mr. Lowell. Well, in many agencies what you will find is 
that it is not just the Secretary or the Deputy or the 
Assistant Secretary or its equivalent, it is the lowest level 
of person working on the subject at the end of every day.
    Mr. Delahunt. But that is my concern, that is my concern. I 
think that issue is the predicate for addressing the concerns 
that you as a panel have addressed. You got to begin there. And 
we really have to do a thorough review, because I can--I would 
testify in the next Congress that as Chair of that Committee, I 
saw material that was classified that was, it was absurd that 
it was classified. It was just building up a backlog of 
classified information that ought to be, that everyone in this 
room today would concur ought to be in the public domain.
    The concern that I have is not so much about WikiLeaks but 
what we are not having access to in a democracy. And again, I 
hope that in the future, it is addressed, whether it is in this 
Committee or any Committee, maybe a Select Committee is 
actually needed, and people coming in who actually do the 
classification, not the secretary, not the head of the agency, 
but to hear it.
    Now, I had occasion working with Congressman Lungren where 
we had concerns about information that was being disseminated 
from the FBI. It was very revealing in terms of how it was 
done. And I am not saying it was, the classification was done 
in good faith. But it clearly did not, in my judgment, meet any 
kind of standard in terms of classification. That has got to be 
reviewed. Mr. Blanton.
    Mr. Blanton. Congressman, you have got a couple of great 
assets at your disposal for the next session. There is a 
terrific review board called the public interest 
declassification board headed by Marty Faga former head of the 
National Reconnaissance Office. Smart people are looking at 
exactly these questions of how do you change it on the front 
end so you don't--because every single classification decision 
that a lowly bureaucrat makes generates a stream of cost to the 
taxpayers and to the efficient flow of information that goes on 
indefinitely until somebody like me asks for that document to 
get released. That is a terrible way to do business. It should 
be automatic after a certain sunset on every one of these 
    You can call in those public interest declass board folks 
so they can give you some expertise. There is a wonderful 
little office called the Information Security Oversight Office. 
Those are the folks that audit the secrecy system. They are 
smart. The head of that office is the guy that coined the term 
WikiMania that I have been using today in my statement. Call 
them in and give them some more resources. I think they got 29 
people to ride herd on this massive overclassified security 
system. They need to know. But they can guide you through how 
does the stamp get made.
    And the last thing I would ask, Mr. Chairman, we have done 
about four different postings that support the consensus on the 
Committee of massive overclassification. Congressman Poe 
commented on it, and agreed with Congressman Delahunt actually. 
It seems that they actually agreed on this. This is actually a 
piece of White House e-mail that is declassified in a process 1 
week apart.
    And the first time they cut out the middle, blacked it out, 
and the second time they cut out the top and the bottom. You 
slide them together and you got the whole thing. And the punch 
line is it was the same reviewer, a senior reviewer with 25 
years experience. I called him up and said what is up with 
that? He said, oh, there must have been something in the paper 
about Egypt that week, but Libya this week.
    Mr. Delahunt. Exactly.
    Mr. Blanton. We got about five or six Web postings of these 
kind of graphic illustrations of the overclassification problem 
that will help you get your arms around it, and I hope do 
something about it.
    Mr. Delahunt. Who authorizes the leaks, by the way?
    Mr. Blanton. There is that famous quote from James Baker, 
the former Secretary of State under President George H.W. Bush. 
He said, you know, the ship of state is a very unusual ship, it 
is the only one that leaks from the top. And I think Daniel 
Schorr once commented when David Gergen was brought into the 
Bush White House, well, you know, Jim Baker was too busy 
leaking at the high level, they need somebody to leak at the 
mid level.
    Mr. Delahunt. Well, you know, what I find ironic, of 
course, is the umbrage that some will take about some leaks, 
but I guess it is not their leaks. There are good leaks and bad 
leaks, I guess is the bottom line. Mr. Nader.
    Mr. Nader. Congressman, part of this goes back to the 
integrity of the civil servant and protecting it and letting 
civil servants and people who work in the Armed Forces and the 
executive branch take their conscience to work. And if you look 
at the civil service oath of office, it is not to the cabinet 
secretary, it is not to the President, it is to the highest 
moral standards. And a lot of this idiocy and 
overclassification comes from the lack of internal self-
confidence that they will have some reasonable protection by 
civil servants who would say this is foolish to do this.
    I will just give you one example. Forty years ago, one 
agency of the government wanted to get from the U.S. Navy the 
amount of water pollution coming out of naval bases. And the 
Navy denied the then-agency dealing with water pollution, they 
denied the disclosure of the volume of sewage going into the 
ocean on the grounds that the Chinese and the Soviets could use 
that information in order to determine how many sailors were on 
the base. That is a level of foolishness that could have been 
nipped in the bud if we supported our civil servants and 
basically recognized that this is, overall, a struggle between 
individual conscience of people up against the organizational 
machines that we call bureaucracy.
    And we always should bring back the civil service oath of 
office, very short, very compelling, they all have to take it. 
We should protect them in making sure that it can be 
implemented in their daily work.
    Mr. Conyers. Thank you very much. Your additional time was 
granted at the leave of Steve King of Iowa. We now turn to the 
distinguished gentleman from Arizona, Trent Franks.
    Mr. Franks. Well, thank you, Mr. Chairman. I appreciate it. 
I appreciate all of you folks being here. A challenging subject 
this morning. I think it is obvious to me, perhaps to all of 
us, that no human being, regardless of their education or 
training, is really competent to opine or to know the full 
extent of the actual damage that a leak like WikiLeaks could 
cause. I mean, I guess you could put a team of experts together 
to try to assess the future and the potential undetermined 
damage, and I just think that it would be completely a hopeless 
    So I am convinced, obviously, that Julian Assange cannot 
possibly be able to project what the potential damage of what 
he did is all about. That is a significant point. But in light 
of that obvious truth, I am wondering if it is time perhaps for 
us to rewrite our statutes to establish some sort of lower 
burden for the prosecutor when it comes to proving the 
likelihood that a leak could cause actual damage and the 
necessary level of intent under the statute itself.
    Mr. Schoenfeld, you mention in your testimony that the ill 
effects of information leaks can sometimes take years to 
manifest. And you mention Pearl Harbor and the book, The 
American Black Chamber as an example, which I think is a 
brilliant example, where the book had disclosed certain things 
that perhaps could have prevented Pearl Harbor. And I am going 
to try get you to expand on that a little bit.
    And that our government, I understand, actually considered 
prosecuting the author of that book but felt like the 
prosecution and the public nature of it might enlighten Japan 
even more than what the book did. So I am hoping that you can 
describe what might have seemed to the outside observer to be 
the unforeseen consequences of the leaks through the book, and 
if hypothetically, the author of The American Black Chamber 
were to be tried criminally for disclosing intelligence 
information today what level of mens rea do you think a 
prosecutor would be able to show in this case? And I mean, I 
guess purposeful or malicious intent to aiding the bombing of 
Pearl Harbor would not be one of them. That probably would be 
too little too strong. But what about perhaps just 
recklessness? I know it is difficult to show malicious intent, 
but yet, the devastation that was caused at Pearl Harbor, you 
know, my last memory of that reading of the numbers on that war 
is 50 million dead. It was kind of a big deal, the whole war.
    And so in light of this, do you think that we should 
reconsider the mens rea elements of our espionage statutes? And 
I have given you a complicated question there. Tell us about 
Black Chamber, tell us how it all fits and how you think that 
we would approach that today.
    Mr. Schoenfeld. Thank you very much, Congressman, for that 
very interesting question. Herbert R. Yardley was probably 
America's leading cryptographer in the 1920's. He was put out 
of his job after Secretary of State Simpson said, gentlemen 
don't read other gentlemen's male, fell on hard times in the 
Depression and wrote a book called the American Black Chamber, 
basically wrote it to make a pile of money. He laid bare on 
that book the full history of American code-breaking efforts, 
including our successes in the Washington Naval Conference of 
1921 where we broke the Japanese diplomatic codes and were able 
to outfox them in those negotiations.
    When that book came out, it was treated much like Eric 
Lichtblau regarded his own story in The Times as a kind of 
interesting yarn. Highly entertaining was what an American 
newspaper said about it. But in Japan it caused an absolute 
furor about the laxity with which their own government had 
treated their codes and ciphers. And it led the Japanese 
government over the course of the 1930's to invest heavily in 
additional code security, and they developed a purple machine 
which was nearly unbreakable. And one of the consequences was 
that it delayed the--it slowed down the pace at which we, our 
resurrected code breaking effort, could read Japanese cables.
    And we were somewhat behind when Pearl Harbor came along 
and we missed crucial signals that Pearl Harbor was the 
intended destination of the Japanese attack. Now, if Yardley 
were to be prosecuted today, it would be not a hard case 
because the intent provisions of section 798 which govern 
communications intelligence are very clear. It is one of those 
unusual provision in American law where the Act itself is the 
crime without an intent provision, as far as I remember.
    And so there might be a constitutional challenge, but the 
statute itself does not have an intent requirement. As for 
relaxing the intensity under the Espionage Act, I am overall 
very cautious about changing this Act anyway. I think Congress 
should move very slowly. Widening it has real costs; tightening 
it has other costs, though I don't have an answer. But I think 
hearings like this with attorneys, and I am not an attorney who 
worked closely with the Act, is very much in order.
    Mr. Franks. Thank you, Mr. Chairman, my time is up. But I 
really want you to know I appreciate the response, and I hope 
it kind of puts things in perspective here. Sometimes there is 
no way to possibly anticipate what certain leaks can cause. And 
in this case, it really caused Japan to completely rewrite, 
reassess their codes and potentially could have prevented Pearl 
Harbor. And in the 9/11 world that we live in, it is a relevant 
consideration. And I thank you, Mr. Chairman.
    Mr. Conyers. Thank you very much, Trent. But Professor 
Stone wanted to get one comment in about your question.
    Mr. Stone. Thank you, Mr. Chairman. I think it is very 
important not to get fixated on this question of does the 
speech cause some harm. One of the things the Supreme Court 
figured out pretty quickly is that almost all speech causes 
harm, it is not harmless. And so it made a terrible mistake 
during World War I, which is that it took the position that 
because criticism of the war would undermine the morale of the 
American people, it might lead people to refuse to accept 
induction into the military, that that speech could be punished 
because it might have a harm. And what they figured out pretty 
quickly after that is that was a disaster. That you can't 
prohibit speech that criticizes an ongoing war because it might 
have harm. Speech does have harm. And the Pentagon Papers case, 
although the court said it was not likely in imminent grave 
harm, even Justice Stewart conceded the speech was harmful, 
certainly we were revealing all sorts of confidential 
information about the past, that we had double-dealed with 
respect to some of our allies, that we made alliances that 
hadn't been publicly disclosed before, that made it more 
difficult for us to negotiate in the future. If the standard 
focuses on harm generally, then you have given up the First 
    Mr. Conyers. Well, thank you very much. And we thank Trent 
Franks for raising this line of discussion. I turn now to my 
good friend, the Chairman of the Court Subcommittee, Hank 
Johnson of Georgia.
    Mr. Johnson. Thank you, Mr. Chairman, for holding this very 
important hearing. Thank you panelists for bearing through it. 
Before I ask a few questions, I would like to respectfully 
remind my colleagues that the WikiLeaks organization and Mr. 
Julian Assange are publishers.
    Now, if it can be shown that they, in some way, aided and 
abetted in the perpetration or commission of a crime, or if 
they were parties to a crime, then they could be subject to 
prosecution. But the Justice Department has yet to come forward 
with an indictment. And until and unless an indictment is 
issued, then--and until there is a trial on an indictment, then 
Mr. Assange is entitled to a presumption of innocence by law, 
and his guilt would have to be proved by--there would have to 
be proof beyond a reasonable doubt before that cloak of 
innocence, that presumption of innocence could be removed from 
    So first I would like to just settle this down and let us 
look at this situation through that lens. We do have 
constitutional rights, among which is a right to speak freely 
and a right to publish First Amendment. And I would also like 
to point out the fact that all of the documents that were made 
available to WikiLeaks are not all classified. Some are 
classified. There have been indications from Secretary Robert 
Gates that these releases thus far have not significantly 
harmed overall U.S. interests.
    And a quote from Secretary Gates is as follows: The fact is 
governments deal with the United States because it is in their 
interest, not because they like us, not because they trust us 
and not because they think we can keep secrets. And so while 
there is a public furor about the release of the documents and 
the information contained therein having been disclosed to the 
public, we must not get carried away in a fervor as to what has 
actually occurred.
    Now, if these leaks, and I assume that they do undermine 
national security and the ability of American diplomats to do 
their jobs, and American personnel who actually engage in 
compromising this classified information, should be prosecuted, 
and should be prosecuted to the fullest extent of the law. But 
unless those criminal allegations are proven, let's be careful 
and let's insist on that presumption of innocence.
    Now, The New York Times is also publishing this information 
and we aren't shutting down their Web site or encouraging an 
international manhunt for its editors. And we cannot allow 
whatever outrage that we may have, whether or not it be 
justified or not, to cloud our judgment about our fundamental 
right to a freedom of the press.
    Now, we have got to acknowledge that more than just the 
publishing of this material, this is actually a failure of the 
U.S. to protect its material. After all, it is a private first 
class who is alleged to have had access to this treasure trove 
of information and the ability to download it.
    Primarily it is our fault that this information was 
released, and we need to--and if there is a service, or if 
there is a positive twist on what has occurred, it is that we 
have been made aware of a softness in our protection of our 
important information, and therefore we now, because of public 
disclosure, we are now in a position to correct and make safer 
and more fail-proof our information. So for that I would have 
to thank Mr. Assange for that public service.
    Now, we certainly should do a better job of protection 
instead of embarking upon a crusade to harass and even 
prosecute publishers of information. And I trust that our 
Justice Department will look very carefully at this case and 
the chilling effect that a prosecution that is unwarranted 
could have on our ability to enjoy our First Amendment freedoms 
in this country.
    The Administration has directed Federal agencies to 
prohibit their employees from accessing WikiLeaks documents on 
their work computers. It has also been reported that a State 
Department employee and alumnus of Columbia University School 
of International and Public Affairs has warned school officials 
that students interested in a diplomatic career should not 
access the documents, even from their home computers.
    If I may ask Mr. Blanton and Mr. Nader, what are your 
thoughts about this, and censorship-free Internet access has 
been a priority for us as we have dealt with other countries, 
particularly China. And we encourage them to open up to have 
free Internet or freedom of Internet access. And do you see 
where our current stance could be--could place us in an 
untenable position as far as just assuming a moral high ground 
for making those kinds of arguments to those around the world 
who don't enjoy the same freedom as we do? Mr. Blanton and then 
Mr. Nader.
    Mr. Blanton. Mr. Congressman, that wonderful example from 
Columbia University, I think the best answer to that came from 
a professor there named Gary Sick, who was a career Navy 
officer and served on the National Security Council staff under 
Presidents Ford, Carter and Reagan. Professor Sick stood up, I 
think, in an open meeting at Columbia and said, if there is any 
student of international affairs who is not reading the 
WikiLeaks cables, then they should be thrown out of the 
profession because this is essential information.
    The Air Force is doing this. This is silly. The Air Force 
is essentially restricting its own open source information 
gathering. The Library of Congress is stopping the WikiLeaks 
site. This is just silly. It is self-defeating, it is foolish, 
I am sure it will end, it doesn't get us anywhere.
    And there is the larger question you are going to, and I 
think this is where the slippery slope that Mr. Schoenfeld was 
talking about, he thought the Act should apply to foreigners. 
Well, I have to say on our Web site, the National Security 
Archive, we published the transcripts of Mao Tse-Tung's 
meetings with Richard Nixon and Henry Kissinger.
    That is top secret information in China. That would 
certainly be subject to their Espionage Act. So they get a 
right to come prosecute me on that basis? I am sorry, I don't 
think so. I think we should look at limiting our own laws and 
trying to move to a different kind of standard about what 
transparency we can bring about in governments worldwide.
    Mr. Nader. Well, I think those recommendations, 
Congressman, were, first of all, futile, they can't enforce it, 
chilling, and induces not the best type of conscientious civil 
servant or foreign service officer that the student should 
aspire to. The second point on China is very well put. I think 
Hillary Clinton is not presently recalling her remarks when 
she, in effect, if anything, lauded the hacksters in China for 
breaking through Chinese government censorship on the Internet.
    And as you implied, we can't lecture the world in one 
direction and then start engaging in kind of a suppressive 
activity in our country. Hillary Clinton would be a very good 
witness before this Committee next year to explain not only 
what she perceives as the freedom of Chinese hackers compared 
to other hackers, but also how she has, in effect, done what 
Secretary Gates has done, which is downplayed the importance in 
terms of the damage and risk of the release of these State 
Department cables. The more Gates and Clinton downplay this, it 
seems the stronger case Julian Assange has for what he has 
    Mr. Johnson. Let me ask if anybody sees any benefits that 
has accrued from this unauthorized disclosure of documents, of 
confidential documents, some of which are secret.
    Mr. Schoenfeld. Congressman, I think there are 
unquestionably benefits. But as Professor Stone mentioned a few 
minutes ago, there is also always harm.
    Mr. Johnson. And we have talked about the harm. I just want 
to talk about the benefits.
    Mr. Schoenfeld. No, I take the point. I think there is--you 
know, it is hard to dispute that having access, having public 
access to information that wasn't in the public domain and that 
should have been is always a positive thing. But, you know, to 
use the old aphorism, ``sunshine is the best disinfectant.'' 
You know, I don't think the question is whether there is a 
benefit. I think that seems pretty clear.
    Mr. Johnson. Anyone else?
    Mr. Lowell. One quick thing is this is a benefit, this is a 
clear benefit from these events, because it is allowing 
Congress to sift through, again, a 100-year-old statute to 
ensure that it is still working the way it should is against 
all the other values that we have. So in that sense it has 
sponsored this kind of public discourse, and we are the better 
for it, I think.
    Mr. Johnson. Well, we have some amongst us here in Congress 
who feel that government is the problem, government is, as soon 
as it starts putting its hand in things, then everything goes 
haywire. So I don't know how we resolve that basic conflict, 
although I guess those folks who would say that the government 
gets in the way are confining their objections to a commercial 
context and not a security context. But it is still ironic that 
there would be those who would chip away, and really hack away 
at our right to free speech, and a free press, while at the 
same time, wanting to get government to get out of the 
regulatory business with respect to commercial activities.
    So with that, I will yield back. Thank you, Mr. Chairman.
    Mr. Conyers. You are welcome, Chairman Johnson.
    Mr. Johnson. And would note that not many are around to 
listen to my comments.
    Chairman Conyers. The Chair is now pleased to recognize 
Judge Charles Gonzalez of Texas.
    Mr. Gonzalez. Thank you very much, Mr. Chairman. And Mr. 
Lowell, thank you very much for characterizing the hearing of 
the United States Congress as something that is been official 
that hasn't been the most popular statements in reference to 
what we have been doing, but thank you.
    The first question is, whatever we do here does have 
implications for matters that are really the jurisdiction of 
other Committees. But very important, and I think you all 
recognize this, so I would want a yes or no from each of the 
witnesses, because we are talking about the conduit, we are 
talking about the recipient of the information that has been 
provided them.
    Would you agree--well, yes or no, is the Amazon cloud 
server a recipient, is an Internet service provider a 
recipient? And Dean Stone, just yes or no.
    Mr. Stone. Yes, but it is unconstitutional.
    Mr. Blanton. Yes, but what?
    Mr. Stone. It is unconstitutional.
    Mr. Blanton. What's unconstitutional?
    Mr. Stone. It created its recipient for purposes of 
criminal liability.
    Mr. Gonzalez. But the conduit, the medium is a recipient.
    Mr. Stone. Under literal definition I would say yes, but I 
would say it is moot because it would be unconstitutional to 
apply it that way.
    Mr. Gonzalez. Mr. Lowell.
    Mr. Lowell. Yes, they are a recipient. The statute will 
apply once they redisclose. It is not a crime to receive, it is 
a crime to retransmit, which they are doing by allowing people 
onto their site. And like the professor, I think such an 
application would be a gross overapplication and 
    Mr. Gonzalez. Mr. Wainstein.
    Mr. Wainstein. Yes, Congressman, it would be recipient and 
I guess it could fall within the statute, but it is very 
unlikely anybody would ever want to prosecute it. And it would 
have to await--while there is a provision that says if you 
retain and did not tell or return the information to the 
government, under some circumstances, an entity could be 
prosecuted, it is very unlikely that such an entity would be 
prosecuted, even if it, in turn, distributed beyond the 
    Mr. Gonzalez. Mr. Schoenfeld.
    Mr. Schoenfeld. Yes, it is a recipient. I agree with Mr. 
Wainstein that it is very unlikely that any prosecutor would 
ever tackle it. There are so many other more blatant leaks that 
have not been prosecuted; that one seems really a stretch.
    Mr. Gonzalez. Mr. Vladeck.
    Mr. Vladeck. Yes, I just echo Mr. Wainstein's point, I 
think the key is the retention provision of the Espionage Act. 
I think the government would far more quickly prosecute for 
retention than for publication. And I think that is where you 
would see the constitutional problems that Mr. Lowell and 
Professor Stone alluded to.
    Mr. Gonzalez. Come on, Mr. Blanton, disagree.
    Mr. Blanton. Yes, but should never be prosecuted, just 
    Mr. Gonzalez. Mr. Nader.
    Mr. Nader. No, it is a conduit contractor.
    Mr. Gonzalez. See, I am with you, Mr. Nader. It has huge 
implications, unbelievable implications. Because then I really 
think you need to prosecute the person that provided the ink 
for the newspaper, the person that provided the paper for the 
newspaper. Why aren't we doing that? And you are saying it is 
unlikely, but crazy things happen, crazy things happen when 
people are scared, and there is fear out there.
    So this question will go to Mr. Lowell, and let's see who 
else, it is going to be Mr. Vladeck. You all have given us 
certain suggestions, and I think they are excellent. And it all 
comes down to what I think have been basic principles all 
along, and that is intent. So let's say we tighten up how we 
classify information, and we find this formula and we find the 
arbiter, we have got the criteria, it is tightened down; it is 
legitimately classified, and then someone violates their oath. 
That is easy. I mean, that person is going to be persecuted, 
and he should be--or prosecuted and persecuted likely. And that 
happens. But now we go to that person that receives the 
information. And you say that, Mr. Lowell, I think you had 
introduced a clear and precise specific intent requirement--or 
that is Mr. Vladeck. Mr. Lowell, carefully define espionage, 
intent to injure the United States.
    How do you define specific intent? You can't just say, 
well, I saw it and anyone who knows that this is--could be 
injurious to the legitimate interest of the United States, or 
do you start having something at that point in time that you 
should assume, a reasonable person should assume these things?
    How do--is it just the traditional principles that we 
always apply? Because I understand. I think you are on to 
something that you still have to have the intent. But I never 
had--I don't recall someone acknowledging that they intended to 
do certain things when their whole defense is that they are not 
culpable because they never had that intent. So we end up back 
on the intent question.
    Mr. Lowell. Well, either Congress will end up in the intent 
or the courts will end up with the intent issue. And when both 
of them do, they will look to various things that are, as you 
pointed out, true in every criminal case to see what a person 
accused intent by a person's statements, the context in which 
they acted, and the circumstantial evidence. If a government 
employee sees that their immediate boss is talking to the press 
about a topic, that person may have a good faith belief of that 
is okay to talk about even if it includes classified 
    If a recipient is acting in the context of his or her job 
as a lobbyist or as a member of the press, or even in a free 
speech context, and hears something and retransmits it because 
there is nothing that indicates that it is of any particular 
damage and it is part of the person's job, it goes to that 
person's intent. If the person sees that they are operating 
overtly and not covertly, they are not stealing information, 
they didn't pay for it, they didn't bribe anybody for it, then 
there is evidence of their intent.
    The issues of bad faith and good faith apply in almost 
every criminal prosecution in a white-collar context. This is 
no different, it will just be unique as to what will show the 
good or bad faith.
    Mr. Gonzalez. Mr. Vladeck.
    Mr. Vladeck. I don't have anything to add. I think he is 
exactly right. The only piece I might tack on at the end is 
whether there would be circumstances where we would also want 
to include recklessness, where we might allow for prosecution, 
short of the showing of specific intent if we can show that the 
defendant acted completely recklessly and without regard for 
any of the safeguards that are built into the statute. But I 
otherwise totally agree with Mr. Lowell.
    Mr. Gonzalez. Mr. Chairman, thank you. I do have one last 
observation, and that is when we all went to law school, we 
remember in times of war, the law is silent, remember that? The 
Constitution is not a suicide pact. The problem in today's 
world is that wars are indefinite, wars are open-ended, wars 
are not even declared. That is what really is probably one of 
the greatest problems for us, is what is, I guess, the new 
normal out here. Thank you very much, and I yield back.
    Mr. Conyers. I want to thank you very much, Judge Gonzalez, 
for your concluding the questions in this hearing. This hearing 
has a certain poignancy because it may be our final hearing in 
the 111th Congress. But we may be coming back next week, Bob, 
so I can't be conclusive in ensuring you that this will be my 
last hearing as Chair.
    Mr. Goodlatte. Mr. Chairman, if you come back, I will come 
back too. And if you will yield, I would like to say that while 
it is indefinite exactly how much longer we will be able to 
call you Mr. Chairman in the official capacity, you will always 
be Mr. Chairman to all of us. You have done a great job as 
Chairman of this Committee. You have been very fair to the 
minority, so we look forward to reciprocating next year.
    Mr. Conyers. Thank you so much. And I want to say to these 
seven gentlemen that have been with us since early this 
morning, this may be, in fact, for me personally, one of the 
most important hearings that the Committee has undertaken. And 
I am already talking with Mr. Goodlatte about the possibility 
of subsequent hearings on this same subject in the 112th 
Congress. And so we thank you as sincerely as all of us can and 
declare these hearings adjourned.
    [Whereupon, at 1:48 p.m., the Committee was adjourned.]