testing one two testing one t no to take place we welcome everyone here to the hearing in the texas versus johnson case  nineteen eighty nine the supreme court's fourth one of the fundamental principles of our democracy that is that if there is a bedrock principle underlying the first amendment is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable 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's no doubt that wiki leaks is and unpopular position right now many feel their publication was offensive but popularity 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  caused me some consternation indeed when everyone in this town is joining together calling for someone it's  a sure sign that we might want to slow down and take a closer look and that's why it was so encouraging to hear the former office of legal counsel jack goldsmith who served under george w bush cautioned us only last week and he said i find myself agreeing with those who think assad as being unduly vilified i certainly do not support or like his disclosure of secrets that harm u s national security or foreign policy and ter but as all the hand wringing over the nine hundred seventeen s shows it is not obvious what law he has violated our country was founded on the believe speech sanker saying and that the answer to bad speech is not censorship or prosecution but more speech and so whatever one thinks about this controversy it's clear that prosecuting wiki leaks 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 and there's agreement that sometimes secrecy is necessary the real problem today is not too little secrecy but too much secrecy recalled the pentagon papers case justice potter stewart put it when everything is classified nothing is classified rampant over classification in the us 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 of 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 what's really sensitive furthermore we're too quick to accept government claims that risk to national security and fire too quick to forget the normal the enormous value of some national security leaks as to the harm caused by these releases made most will agree with with the defense secretary it's his assessment  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 so the harm here according to our republican defense secretary is fairly modest and on the other side of the ledger there's no need to go all the way back to the pentagon papers to find examples of national security leaks that critical to stopping government abuses and preserving a healthy democracy they happen all the time in two thousand and five the new york times published critical information about widespread mesnick surveillance ultimately we learned of a governmental crisis that included threats of mass resignations at the justice department and outrageous efforts to core basic attorney general into approving illegal spying over the objections of his deputy and legal counsel's office if not for this truly we have never learn what a civil libertarian john ashcroft is in two thousand for the leak of a secret office of legal counsel interrogation memos led to broader revelations of the cia's brutal enhanced interrogation program at black sites these memos had not been previously revealed to the judiciary committee or to many in congress feel this harm to national security but to many americans the harm was a secret program of waterboarding and other abuses that might never have been 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've read late into the night and i was most of the time when i was reading this some really great testimony and i'm so glad that you're here with us i'd like to recognize my friend and intrigued by your metaphor for use of the need for high fences around a small graveyard but out are you saying this administration is located in a small graveyard smith and asking me just and then but the release last month by wiki leaks was of over two hundred fifty thousand classified and diplomatic u s documents threatens our national security our relations with foreign governments and continued candor from embassy officials and foreign sources reprint these materials claim to promote increased government transparency but the real motivation is self promotion and increase or kill ation 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 they're being governments there been information protected by those governments there are clearly been documents classified that should not have been classified while there is a legitimate dispute over the extent to which information is protected and classified is simply unrealistic to think that the protection of information serves no legitimate purpose much attention has be given to this most recent waco leaks release many dismissed that any negative repercussions resulted from the lake arguing that the documents while embarrassing to the us did no real harm to the country but what about previous leaks by this website on july twenty fifth two thousand and ten wikileaks released confidential military field reports on the war in afghanistan really iraq war related documents on october twenty third two thousand and ten both of these leaks reveal sensitive military information that endangered american troops and may have bolstered our enemy's campaigns against last month's wiki leaks release has thrust in the spotlight and old some would even say arcane statute the espionage act or nine hundred seventeen it is also resurrected an age old debate on first amendment protections afforded to media publications but today we're confronted with a new kind of media the internet blogs where the boundaries of free speech how do we balance this braiding with the government's need to protect some information the drafters of the nineteen seventeen act could not have foreseen that nearly one hundred years later sensitive government information could be transmitted to a global audience instantaneously america's counterterrorism mass efforts must respond to new and emerging threats such as homegrown terrorism our criminal laws also keep pace with advancing technologies that enable widespread dissemination of protected information this time the leak involved primarily diplomatic cables but previously disclosed even more sensitive information and then actually could be even more damaging it could disclose accordance 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 this is about the safety of american personnel overseas at all levels from the foot soldier to the commander in chief that is chairman and you're back thank you  a very important way and we yield to him at this time thank you mr chairman you know as you're 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 all 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 etc there has to be parameters but i think we're at a moment in history where there is a 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 declassification procedures when you inquire for any executive agency and pose the very simple question well why is it classified it's extremely difficult to get a direct and clear  answer does the classification is that the secretary of state are the attorney general who does the classification during the course of my service i discovered it was some low level bureaucrats and the process itself is is arcane and there is no accountability in the classification process sees dead exist within the executive branch and that's very dangerous because she crecy is the trademark of totalitarian is to the contrary transparency and openness is what democracy is about so while there's a focus now on the issue of we link i think it provides an opportunity for this committee and i think this is a concern that shared by both republicans and democrats about the classification process there is fock too much secrecy over classification with in the executive branch and i think it puts american democracy at risk and with that i yield back will be missed on this committee this is a crucial issue as known to all of us and not on a like many questions crucial issues and perhaps most crucial issues it is laced very generously with goodbye to bill obviously of the massachusetts delegation he is the one member that i can clearly understand despite that accent over there but truly he's been a good friend and  again just such a powerful member to the house and he will be missed but i'm hoping that of course he made the decision because he's moving on to something that's going to be even more rewarding than what he's done here in congress again thank you very much m  i see it two to two issues one issue is we've got to find the original leak and what caused it who did it and hold him accountable other issues that this brings forth is the fact that after nine eleven the big talk was we need to share information with different agencies in the united states government because we don't know what one inch agency's doing or knows that should be shared and so now we have mass sharing and now we seem like we're going to move away from that because of this situation i have no sympathy for the alleged thief in this situation no better than texas pollan shop dealer that deals and stolen merchandise and sells it to the highest bidder but he's doing it for political gain he should be held accountable but on the other hand i'm very concerned about our own overclassification of information the easiest way for a government agency to take information is to say it's classified only special folks get to know what's in it and i've been to a lot of classified briefings and frankly i've read a lot of that on the news in the newspaper for that meeting ever took place and it wasn't classified somebody just class size to make it classified and then you have the 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'm very concerned about that because of the fact that you know it's we're the greatest powerful this nation that ever existed and we need to ratchet up our secure the 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's like a bunch of folks at a bank decide hold a christmas party down the street and they all take off or leave the vault open you know there's a security problem 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 for political reasons or any other reasons they also need to be held accountable back thank you to this committee and two previous congresses and i first witness professor jeffrey stone professor and former dean of the university of chicago law school has written quite a bit on constitutional law several books the first amendment and government one of his books perilous times free speech in the word time was just recently praised by justice kagan as a masterpiece of constitutional history promises to redefine the national debate on civil liberties and free speech were honored by your being here and ask you to be the first witness in all of this the statements of of our witnesses will be introduced in their entirety into the record gohmert members of the committee thank you very much for inviting me and giving me this opportunity to speak with you about these issues but i'd like to do is address the constitutionality of the proposed shield act which has been introduced in both houses of congress the shield act that would amend the espionage act of one hundred seventeen 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 and all of this act might be constitutional as applied to government employees who on lawfully leak such material to persons were on authorized to receive it it is plainly on constitutional 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 the very least it is expressed are limited to situations in which the dissemination of the specific information that issue poses a clear and imminent danger of grave harm to the nation precise meaning clear and present danger has evolved but the principle that animates it was stated eloquently by justice louis brandeis in his brilliant one nine hundred twenty seven concurring opinion in witney versus california those who won 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 as 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 are parts of suppress speech concerning the activities of the government itself where james madison observed a popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both as madison warned of citizens do not know what their own government is doing and they are hardly in a position to question his judgments were 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 to 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 convention justify suppression we might think of this like the attorney client privilege lyon is free to keep matter secrets but disclosing them to no one is also free to disclose certain matters to his attorney who is under a legal obligation to return to respect the confidentiality of a client's disclosures in this is sort of like the government employee that the attorney violates the privilege by revealing the client's confidences say to a reporter and the attorney can be punished for doing so but the newspaper cannot be constitutionally punished for disseminating the information may wonder whether it makes sense to give the government so little authority to punish the dissemination of on lawfully 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 manner prejudice to get rid 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 and indeed that's one reason why we grab the government so much authority to restrict the speech of its own employees rather than system that in every case the government demonstrates that the harm outweighs the benefit third as we've 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 and residing a strict a 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 a suppression of public speech must be the government last rather than its first resort in addressing a potential problem if there are other means by which government can prevent reduce the danger it must exhaust those other means before it can even entertain the prospect of suppressing the freedom of speech and the secrecy situation the most obvious and the correct way for government to prevent the danger is by ensuring that information from a source was obtained it unlawfully that individual may not be punished for publicly disseminating the information absent the need of the highest order the court explained that if the sanctions that presently attached to the underlying criminal act did not provide sufficient tarrant's 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 non law abiding party this may seem a disorderly situation but the court is in fact come up with a good solution we grant the government too much power to punish those who disseminate information then we risk too great sacrifice of public deliberation 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 just 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 is this the proposed shield act is unconstitutional fact chief counsel during the president bill clinton impeachment is also a former special assistant to the attorney general receiving my statement let me say that the perspective i bring 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 four and a half years of litigating under the espionage act in the so called apac lobbyist case that ended thirty days before trial when the justice department dropped 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 principle law that's used whenever cases like a pack lobbyist case and now the wiki leaks case make the news however this law's everyone has said is about one hundred years old and it had flaws in it in terms of its language from the moment it was passed and it is certainly shown to be outdated at least ever since the debate that occurred in the pentagon papers case in one nine hundred seventy one however is 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 at 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 that everyone agrees that there's a need for a strong criminal law to address real spying and espionage to address in 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 who 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've said together and the sections of the current law apply equally and have been applied equally when it they are being used to go after a former f b i agent spy robert hanssen in disguise in secrecy and 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 a law that needs to be carefully scrutinized one more introductory mark if i may and this is 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 wiki leaks events material that bear a classification stamp that simply work 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 if they both share the same classification stamp the problems of the law are many the current law of 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 can be applied to the foreign policy analyst who meets with that government employee and discusses what the government employee knew and then it can be applied to a reporter who was overhearing the conversation between the government employee and the adult list and prints of the 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 stated 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 in important national security interests of the united states in every dangerous times over the past few decades courts have grappled how best to apply the words of the law to these situations in the apac 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's the public disclosure of wiki leaks and julian assange with thousands of documents the same questions arise again does the law apply extraterritoriality is he or is he not  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 straitjacketed this committee and congress is not it can operate on a clean slate and as i've 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 secondly 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 for it we must allow for some defense when information is improperly classified or when that information is so out in the public to base a criminal prosecution on it defies the notions of fairness and due process unless we need a law that will rationalize how it is possible to apply it to  government officials and non government officials especially when those non government officials are protected by the first amendment that is easier said than done this is the beginning of long process i know it is possible to balance those distinguished experts to testify about the recent wiki leaks releases this situation reflects a fundamental tension democracy on one hand the importance of a free press and the need to think very long and very hard before taking any before the senate judiciary committee and at that time our concern revolve primarily around the possibility of a leak to a traditional news organization since may however we've all learned that there is a much more serious threat the threat posed by an organization that's committed not to the traditional media function of reporting news where the information but the mass and indiscriminate disclosure of sensitive information thanks to wiki leaks the government now has two very important decisions to make the first is  songe end up facing no charges for their mass document releases which are about as i as i've ever heard of they will conclude that they're legally invulnerable to 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 doesn't fact ripen into a criminal case against songe and will certainly raise a host of hollywood a gated issues the most heated of which will be a strong constitutional challenge on the first amendment the main issue here will be the following if wiki leaks 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 publish similarly sensitive materials and every news outlet in our country is in fear prosecution and what happens to freedom of the press this surely is a serious concern is the reason why the government has never prosecuted a news organization for espionage and it's the reason we all should pause and think through the implications before charging into a prosecution here key to overcoming this concern is to demonstrate that wiki leaks 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 focus is first and foremost on simply obtaining and disclosing official secrets while the media gathers news through investigative reporting 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 take a story indiscriminately releases huge troves of weak materials by clearly showing how wiki leaks is fundamentally different the government should be able to on a number of points such as clarifying the level of intent required prosecute a leak determining when the government does not need to show that the leak actually risk damage to our national security before proceeding with the 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 twenty first  century presents a challenge to the executive branch which now has to decide how to respond to these disclosures but it also presents challenges for congress which has to decide whether we need new such story tools to deal with this new threat i commend the committee for stepping up  the challenge given the fundamental importance of this issue to our civil liberties and to our national security i'm confident it will be time well spent i appreciate your including me in this important effort and i stand ready to answer any questions you may  coming before us once again i think most people committed to the fact that we have to look at the in the coming congress question  damage ranking republicans and democrats in congress have called for the prosecution of julian a songe under the espionage act whether or not the administration takes legal action against mr saunders we should not lose sight of the broader context in which this episode has occurred 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 we as a country are extremely well informed about what our government does in our name classification within our national security third owing in part and overclassification the leaking of secret information to the press has become part of the normal formal process by which the american people are kept informed by the senate intelligence committee counted one hundred forty seven disclosures of classified information that made their way into the press into the nation's  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 are annoyed at the rise and exceptionally damaging in two thousand and six to take one example the new york times revealed details of a  parties there was 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 discernible benefits t public i have sketched 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 innocuously of government 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 but there are five things we need to do 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  make sure that legitimate whistleblowers have viable avenues other than the media which they can turn third we need to reestablish deterrence and prosecute those in government who violate their confidential confidentiality agreements and fourth we need at the very least to bring down the weight of public opprobrium on those in the media disseminate vital secrets and this body the house of representatives contributed to that effort in two thousand six when it passed a resolution reprimanding the new york times and other news organizations for revealing monitoring program and finally we sometimes need to take legal action we have never had a prosecution of a media in our history although we can close the world war two 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 nation as the chicago tribune did one hundred forty two reasons of prudence suggests that such a prosecution should be a last resort against the media only in the face of reckless disregard for the public safety massive in volume and so indiscriminate what they convey that it becomes very difficult to assess the overall harm because there are so many different ways in which that harm is occurring the purpose of is to cripple our and as the wiki leaks controversy has unfolded he's further distinguished as one of the foremost national experts on the matter we will commute here thank you mr chairman chairman conyers gohmert distinguished members of the committee thank you very much for inviting me to participate in this important here and 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 one thousand seventy nine tony latham who was then the general counsel of the cia described the uncertainty surrounding the scope of the espionage act as quote the worst of both worlds unquote 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 a perfectly legitimate expression in debate by persons who must be as unsure of the liabilities as i am unsure of their obligations whatever one's views of wiki leaks as an organization of joy in a staunch as an individual or a public disclosures of classified information more generally recent events have driven home and central critique that the uncertainty surrounding the statute benefits no one and leaves many questions unanswered about who may be held liable and under what circumstances or what types of conduct in my testimony today i'd like to briefly identify five distinct ways in which the espionage act is currently as currently written creates problematic uncertainty and then time permitting to suggest potential means of redress in these defects versus its title suggests and as mr lowell testified the espionage act  seventy was designed and intended to deal with classic acts of espionage which black's law dictionary defines as quote the practice of using spies to collect information about what another government or company is doing or plans to do and quote as such the plan to the act fails to require a 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 a reason to believe that the wrongfully obtained or disclose 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 into the espionage act three distinct classes of cases that raise three distinct sets of issues classic espionage leave 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 defense information without immediately returning the material to the government office or authorized to possess it in other words the text of the act was no distinction between the leaker the recipient of the leak or the one hundred 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 x plane language regardless of their specific intent and not withstand on the very real fact that by that point the proverbial cat is long since out of the bag third in related court struggling with these first two defects have raised a series of disparate conclusions as to the requisite mens rea a that willfulness requirement obligates the government to prove that defendants know that disclosing classified documents could threaten national security and that 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 is clear at the very least but nothing in the text of the statute speaks to the defendant's bad faith nor is there precedent for the proposition  and briefly the potentially sweeping nature of the espionage act that's currently written inadvertently interfere with federal whistleblower laws for example the federal whistleblower protection act protect the public disclosure of a violation of any law rule or regulation only if such disclosure is not specifically prohibited by law then if such information is not specifically required by executive order to be kept secret in the interest of national defense or the conduct of foreign affairs similar language appears in most other federal whistleblower statutes i daresay that 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 from even the realm of possibility and finally i won't even talk about this in detail that's already been mentioned by my colleagues the problem over class occasion should there be a defense for improper classification how do we actually attack the real elephant in the room when we're talking about the disclosure of things that perhaps should never have been kept secret in the first place what then is to be done perhaps unsurprisingly in light of my observations above and those of my colleagues i'd 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 a cases where the defendant specifically intends the disclosure to harm national security and or to benefit a foreign power i think you've already heard this one 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 in this body does decide to include press publication my own views 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 authorized disclosure statute and express exemption for any disclosure is covered by an applicable federal whistleblower statute mr chairman in summation testifying or writing a larger article about forty years ago however and better schmidt to columbia law school professors wrote that we have lived since world war one in a state of but nine indeterminacy about the rules of law governing defense secrets if anything such but not indetermin only become more pronounced in the last forty years and of recent events are an indication increasingly less benign thank you for question you've left us with some very large challenges professor related and we appreciate it very much our next witness is the director of the national security ar george washington university professor thomas blanton in the year two thousand the archive won the george polk award for quote piercings serving veils of government secrecy guiding journalists in search of the truth and informing us all he's also the founding editorial board member of freedom we're happy to have you here today mr chairman it's a it's a great honor for me and judge gohmert and also the be in the middle of this extraordinary high level tutorial and the espionage act in the constitution i feel like a grad student again and it's a joy actually i also want to thank you mr chairman for resurrecting my graveyard quote that we have a low fences around vast areas of government secrets where we really need paul fences around small graveyards of the real secret at th 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'm 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 have a debate on fox news targeted assassination attempts on julianna saint well i gotta say g gordon liddy would be right at home and both is absurd and the overreaction the government  does is not to kill anybody or firebomb something but to go right to the second made major point to make today they're going to classify information what i'm worried about most is the backlash i mean in my prepared statement i've got multiple examples of all the estimates and they range from fifty percent to ninety percent of what the problem overclassification really amounts to gov tom kane head of the nine eleven commission after looking at all the al qaeda intelligence that we gather before nine eleven said you know seventy five 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's the only way to really protect ourselves that's what a great lesson that is and that's 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 safe and i think it's a mistake to try to see this as a balancing test it's not a balance between openness and security the findings of the nine eleven commission were that more openness would have made us more secure that's what you do in an open society to keep yourself safe you're not safer in the dark you don't hide your vulnerabilities you expose them and you fix them that's how we proceed in america the third point i just want to make about where we are today we're in the middle of a syndrome that one senior government official i really respect holds all the clearances does the audit's pushes back against excessive secrecy called it wiki mania we're in the middle with the middle of wiki mania and it's going to lead to so much more heat than light targeted assassinations only the most extreme case but look at all the other proposals we've got on the table in the front burner to try to push back to punish wiki leaks to push back against speech i think the problem here is we've 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 a going to add to it is going to make us more safe is it going to make us more free and do that test the wiki maybe the wiki mania is really coming from a series of what in my statement i call wiki myths there has not been a document dump everybody use that phrase there hasn't been one the two thousand less than two thousand cables are on the public record today out of that big database and the editors of le monde in the guardian and new york times say that wiki leaks is consulting with them about what to publish what to re and doing the dialogue with government officials in a pretty extraordinary responsible way it's a very different posture i should say than wiki leaks had even six or eight months ago i think the criticism they've gotten from journalists like us and from the public about endangering people's lives in afghanistan and elsewhere believe or not i think they've actually heard it there's no epidemic of leaks in fact all for the big wiki leaks published the spats have come from a single person's far as we know bradley manning young private so how do you solve the bradley manning problem well you can do a pretty simple thing that since barton is already done it and here's a rational security policy just like you got two people to launch a nuclear missiles you've got 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 right mormon send out to people as missionaries because that's how you have accountability right you don't have solos all right there's no diplomatic meltdown from the wiki leaks i mean there is a lot of heated rhetoric but secretary of defense robert gates who ought to know he served every president in my lifetime as far as i can tell and and mr chairman you quoted his his remarks yeah it's awkward y embarrassing but no it's not a meltdown it's going to make its job harder for diplomats maybe someone is going to have to be reassigned but you know in the long run it's probably in the american national security interest for more foreign governments to be more accountable to their own citizens for their diplomacy it's probably in our national security interest for the king of saudi arabia to actually be on the public record a little more often in chinese pilot girl members to get exposed every now and then that might be long term goal of what american national security bombs we ought to be about  and finally there's not a set a wiki terrorists i've heard that phrase better out there not tears i've got to tell you i wish every terrorist group in the world would write the us ambassador in their local town you know days or weeks before they're 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 on where we'd be glad to talk to you and i understand why the ambassador didn't believe them because wiki leaks said oh and by the way we'll keep anything you say to us confidential it's kind of hard to square with the previous statements of wiki leaks but i wish every terrorist group would get into partnerships with the hmong the no police in the guardian in 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 wiki leaks is not terrorists and so that brings me my final real point recommendation to this committee and to the prosecutors across the river in alexandria which is 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 over some information requests there's still some classified documents from hundred seventeen 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 years where he says look our problem is you know the fundamental cause of the leaks is a sense of illegitimacy that's 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 you protect those very strongly so the test is for all these proposals legislative and otherwise does it send a signal that will actually reduce government secrecy single that we need maximum possible disclosure and stewards to have a system that actually has credibility and protect the real secrets and where we can protect ourselves i thank you mr chairman this opportunity engage in this debate will reduce the mania a little bit and cut through some of that thanks or thank you so much a monthly has named him one of the one hundred most influential americans in history and i thought i would put that in the record that chairman congressman gohmert and other members of the committee for this important and timely hearing a lot of interesting good points have just been made and there's no point for redundancy i'd like to information act and i saw the fervent opposition of the cracks in the executive branch to what was then a rather modest piece of legislation i don't worked with him on strengthening one hundred seventy four free information amendments which made arguably the best in the we're and i also saw the same opposition i think that people like daniel patrick moynihan and 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 so much as its warmaking power its oversight subpoena power its appropriations deliberations and many others bruce fein decried this deprivation of information on the part of bike by the executive branch of the 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 that astley 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 two in the tonkin gulf resolution if the american people knew it was going on before the invasion of iraq with the cover ups the distortions that now have been historically documented by the bush administration including richard the any terrorism counselor to president bush among many what's fascinating about this weekend leaks controversy is that we have to of void it becoming a  distraction focusing on these so called leaks instead of focusing on the abysmal lack of security safeguards by the executive branch of the us government and making those who set up the spores system or allowed it to be penetrated accountable the distraction also is away from the lack of accountability for executive branch officials who suppress information how many times have you seen those people prosecuted at the highest levels in the middle levels of government the suppression of information has led to far more loss of life jeopardize ation american security all the other consequences that are now being attributed to wiki leaks and a son a million iraqis have died as a result of the invasion five thousand us soldiers one hundred thousand 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 is not stampede itself by executive branch pressure to repeat the patriot act the back when this committee issued a pretty sound piece of legislation with hearings bipartisan and then was stampeded along with the rest of congress by karl rove and george w bush with this natori of patriot act stampeded legislation always comes back to haunt its authors furthermore i'm very disturbed by the reaction of attorney general holder i think he's reacting to political pressure and he's  starting to fix the law to meet the enforcement and that's very dangerous he said the other day the nationals quote the national security united states has been put at risk the lives of 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 and quote referring to the weekly 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 as they put us in greater risk and it's very important for us especially represented by congress that the penchant for secrecy is not nourished further by the wiki leaks 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 all third turning power in the executive branch floyd holder to indict a son he said quote 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 day i think you 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 inviolable and i would add that secrecy is the cancer the destroyer of democracy we have overwhelming example 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 week issue the vast majority should never been classified the vast majority reprehensible use of people employing taxpayer dollars the vast majority should have been disclosed if not never stated for the benefit of the american people to hold their government accountable forbes magazine in a cover story and its edition december twentieth outlines in an interview  that early next year the beginning of the disclosure of corporate documents will start early next year forbes said quote a major american bank will suddenly find itself turned inside out tens of thousands of into if its internal documents will be exposed on wiki leaks dot org with no polite requests for executives response or other for more 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 week 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 if you can decide for the many and that concentrated power in the executive branch can make a mockery out of the constitutional authority repository in the us we hear a lot about the information access to information worldwide is very very serious that is only one of those 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 nation to 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's got go and his group is busily working on a technical fix so that this kind of disclosure never happened again many people think that that cannot be done that the genie of the internet is out of the box but it does seem to me that we should be very careful in conclusion and not developing a bill of attainder way not for developing equal protection policy but for the kind of discriminating policy that will make our legal system not reliable and subject thank you ralph nader and my deep gratitude to the seven of you this may in some ways  be one of the finest discussions the committee has had in the one hundred eleventh congress i'm going to take my time sort of directing specific questions to ask all of you or any of you know that you've heard of each other that you may have a  reflection or while you've 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  decision as to who is a journalist and who is the 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 traditional media outlets post a document in toto on its website so it makes for i believe a difficulty and i think it's one that cannot be legislated it has to be decided in another fashion but i do want quickly point out that it's easy to say in american history the function of gathering information from the government by whatever source and disseminating it to the public is classic journalism  person as a journalist it is a dangerous love to be on two responses that one is on that slope right now that's what the law allows as it stands and this will make that point very well that the current law allows the government to prosecute both the recipient of the information as well as the leader of the information the second point though is if you assume that there's ever going to be a case where a reporter or person in the position of the news the recipient of the information can be charged then they didn't fortunately and they ended up not prosecute a case by think we many of us or most agree that is a case so egregious that that newspaper that reporters should or could be charged if you assume that there is such a case in summary a line has to be drawn and my point would be leaks aside from whether you want to call them a newspaper or news organization or not is their mission and their mode of conduct sufficiently divergent from a traditional news organization the type that the was designed to protect that it falls beyond that line so that it could be prosecuted without the first let it stand in the way of the prosecution and without other news organizations living in fear of possibility i'm on the  clear it is from this discussion that the starting point is the cause of the geishas is that the bottom line is it cannot be any coherent solution to these issues without going back and examining the declassification process and standards and that unless we do refocus what's happened because essentially over the last seventy eighty ninety years we've run amok with secrecy and that's created the problems that we've seen here denied the congress access to critical information in the courts access to critical information that is on the american people access to critical information unless and until we go back and we fix that all of this is spinning wheels and i think that's really the place where this committee and where congress has to start it redaction is going on here on a daily basis and we have extensive descriptions of it in the editor's notes by all the media outlets who are publishing stories on this matter and that they have testified to the fact that wiki leaks is following their lead after their reporters engage in exactly that discussion with the government about what the risk is which is question 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 and i would just point also to a certain trajectory and i suspect that mr assange his lawyers have maybe read some of mr wainstein testimony maybe in advance of this hearing because they're doing some very smart things to eliminate exactly the distinctions that you're trying to draw they're 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 we have the capacity that they do not have to do reporting and in fact they are looking more and more like a media organization but i'll even step back one from that because my reading of the first amendment as a lay person is that it also protects speech and this goes to stones 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 slippery slope but on speech and it may go to motivation may go to this fact of  overclassification i pointed out in my testimony in the written statement but 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 so you're going to thing i strenuously disagree with is the notion that wiki leaks sponsible and what it's done we may have indeed redacted some of the documents in the most recent disclosures but we've had the two previous reports and i number of congressmen have referred to secretary gates his remarks dismissing the latest damage that was done by the latest closures one look back at what his remarks were this past summer he said that the lives cooperation with bob woodward really seen top secret programs code names documents meetings and the like also like to include this this full page ad in new york times today by almost one hundred 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 note that we keep leaks is not just the united states if you that there are people in peru kenya australia iceland and other countries who have benefited from 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 add to the discussion we were in mutually in terms of exchanging ideas and views on comments made by other panelists  yes we need to address that question i think it's out there now that's been posed by wiki leaks is ok 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 football team is trying hard to doesn't defend well against the run well you don't fix that just by going on getting a good defensive defensive end you also probably need a good middle linebacker so if you look at dealing very important subject and this panel has been excellent in offering us a number of perspectives about this and i don't know that will get quite the unity that mr blanton claims but nonetheless think that there's probably a increasing dream and 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 is this problem is enhanced by the use of modern technology that spreads it around in places where i'm 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's clearly the case  one member of the u s army having access to and apparently turning over hundreds of thousands of documents secondly i second those who have called for greater openness there are without a doubt  many many things that are classified that should not be and we have a problem i think with out of control expansion of what are being deemed secret and for reasons that are not legitimate in terms of somebody wanting to do a little see why a instead of actually really protecting the national interests of the united states finally we want to make sure that we are  t suppressing information that that should be be made public nonetheless it causes great concern to me that any outside organization would be put in the position of being the  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 to 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'll go to mr win point sign 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 can concerns me that the executive branch as abuses 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 appreciate the question i guess as you pointed but it also i think might heighten awareness of the fact that there really is overclassification and congress i think can play an important role and emphasizing how important it is to the executive branch that overclassification be  got under got under control specially the second branch wants some legislation out of the congress as it relates to the espionage act that 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 specific ideas about things that congress ought to do in this regard we welcome and i'd ask any other member of the panel if they s s stone i don't i don't accept this notion that this is in the executive branch is broad it seems to me that the way in which the classifications i agree that it's not but i'm looking for practical ways to solve the problem but i don't want to argue the point or that i want but i can't you have a sense for us to take legislatively or through appropriations or whatever that would  help us to reassert our authority in this area we're interested well i mean i would bet that's on a bipartisan basis i would say for one thing the dead legislation that provided for instance the no document information may be classified as a judgment is made that the harm of classification standards are what if what if there seems to be some willfulness and deliberate intention to mis classified information that should be classified i get a grant that right and i have to t things that are any amendments to the bill first i've already stated which is to make sure that we distinguish among the various offenses that the mishandling of properly classified information is included therefore it is a distinguishing the various forms of conduct so congress is basically telling the executive branch you're 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 that something was improperly classified in the first instance when else couple suggestions congressman  point that one of the major players in the whole class cation issues the congress itself and when the congress allows itself to be stratified between intelligence committees getting classified information and no one else and congress getting it that is the way the executive branch co op's the congressional role and increases the arbitrary classification discretion of the executive branch so that's something to look into and the second is  that we should look back what has been disclosed it was caused to educate ourselves to be able to more precisely respond to your question because so many things have been declassified later or leaked that were absurd to being classified and that is a good tutorial to develop the kind of nuance your question involves  congress as an extraordinary track record in pushing back against overclassification the greatest success i'd say in the last fifteen years has been the nazi war crimes act that pushed out millions of pages of documents that should have been kept secret all 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 twenty five years old which under the executive order supposed to be treated differently apply the nazi process the working group with some behind it and with congressional oversight behind it to make it work you could break loose that huge backlog of those old secrets that's one of the biggest credibility problems of the current system you could make a huge difference you could empower the public interest the classification 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  t the national archives just started in may real good idea they hired a career cia employee to help oversee it and they're facing backlogs of four hundred million pages of stuff that should have been out thirty years ago 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're 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 meant all right i'm sorry you've got a higher constitutional duty than i do and you ought to have the right all members of congress ought to be this so here we're not talking about historical records we're 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  well these are all very good one other point the allegation has been made and i again i don't know the truth is that wiki leaks is an organization that has not only released the information on the internet but 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 would cross the line between reporting and espionage leaks was pressured by the u s government the u s government to not say cut off the new york times or the washington post and that is that is a tip of an iceberg i believe that that's an issue mr nader but it doesn't address my question which i've already exceeded the time of 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 w the leaker that person then wiki leaks would not enjoy whatever additional first and then protections they had as a news organization rather their charge because they are better of the person who is the leaker that would be an easier case made because then they'd be charged like  this hearing you know one of the problems in passing criminal laws is a lot of challenges if we pass a criminal law we expected to be challenge jonas constitutionality so we had to be consistent with the president 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 have the laws to be precise it can't be subjective after the fact well in this case i think it's bad enough to prosecute the conduct to be has to be precise i'm inclined to think that what happened and the wiki leaks situation ought to be illegal but i think we have a consensus on the talked about and that is should it matter whether you helped to obtain the information or you got it slipped under the door you don't have anything to do with it in terms of your publication and doesn't matter if you knew full well that it was classified and should make a difference that it should or should not have been classified and second you have heard a lot about the intent to harm or whether it actually harmed that's going to have a real problem with practicality and criminal law because whether or not the leak actually harmed you did something to sabotage the iraqi war and we started that debate then be a lot of people that would conclude that you did more good than harm although obviously if you lose that debate you've committed a crime and whether or not even though it did harm you didn't intend for the home should that be a defense the fact that you re debate the iraqi war before a jury if you win the debate you're not if you lose the debate you're guilty if you are lucky enough to be in one jurisdiction where they hate the iraqi war you're in good shape leaking the material if you get the government changes the dynamic when that organization is as you or others have said complicit in the theft of the lead on the front end the problem again is the slow press people  o encourage 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 in not taking out a national enquirer check  thousand dollars and paying for the information we think that's a clear line although under the first amendment i'm 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 classified well the present law doesn't make the disclosure of classified information the crime it makes disclosure of what's called information relating to the national defense a crime and we are now seeing with classified  overclassification that the fact that it's classified may give a presumption that there's a potential danger in its release but it's the beginning of the conversation not and i don't think that's 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's a defense for example that if something is improperly classified so therefore knowledge that it's classified it's not really going to be dispositive  the intent is very difficult so you're right there should 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 in a submarine the policy or in retrospectively what it was better to do than not to have to be at the front and it has to be intent was your intent to now that is you know the same in every criminal case trying to divine the defendant's intent by whatever their direct statements  circumstantial evidence are is going to be the challenge even in a 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's does things overtly as opposed to somebody who wears a disguise and is dealing in drop boxes in the middle of the park if you can tell the difference between what somebody is 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 defining somebodies intent and you're 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 the washing and it might in some other place in the country and that's why among other reasons at least the presumption is some of these cases are brought in the eastern district of virginia where prosecutors believe they have a more sympathetic jury because that briefly congressman you raise the you also the specter of putting the jury in the position of deciding whether something was rightly classified or not and i think it's important to keep in mind that if if if congress were to add an improper classification to that into any revision of the law you're still putting an incredibly high burden on the defense on the punitive defendant who's taken quite a substantial risk if you really think that at the end of the day you know his freedom whether he's going to go to jail for twenty five thirty years depends on his ability to convince a jury that something was wrongly classified so i think you know that's that's 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 a leaks by individuals who thought the dems were wrongly classified those are pretty severe consequences to take such a long long shot on open the floodgates for leakers that there are many salutary reasons for leaking that but there could be considerable disagreement about what what actually is salutary in the current law which has demands that you have reason to believe you could injure the united states seems to capture behavior that we would really like to keep from occurring genuine secret secret what burden of proof would you have of somebody honestly believe that this is good for the country although what if you believed there was a one percent chance that it could injure and ninety nine percent chance that it wouldn't where in that somebody become a felon subject to twenty years in jail that is difficult especially difficult in professor stone points out you can impose higher burdens you can 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 that it states now that statute i think is the is the incredibly tricky one to write but no matter how it's written i think having those categories separated out would be such a substantial improvement in recognizing that the burden should be different in those three cases it would be such a positive development as compared to the status quo that really i think you know almost anything would be beneficial the great benefit of having a very rigorous and narrow start to punish the publication of you because that puts pressure on the government to keep the very important not to make it too easy for the government to try to prosecute the ultimate speaker because they can do that then they get lazy and sloppy on the question  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 intense are they still guilty of the same crime to put flesh on the bones congressman king in my brief introductory remarks today i said the statute i was speaking about section seven ninety three 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 of and then you have the person he's doing it to it could be a foreign policy wonk it could be somebody else and then you could have the rip order who as i said overheard the conversation and published an article and they're all responsible for releasing the exact same information they may be releasing it in different ways ironically the last hero 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's 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 whatever he or she does that it is not supposed to occur and there's very few excuses to go outside of channels to do it if you protect whistleblowers then putting that aside the intent requirement is easy to prove to the person who's not in the confidentiality agreement and is actively engaged in the exchange as were the defendants in the so called apac case that was very problematic because on monday white house  department officials brought them in to discuss foreign policy that they wanted them to know and then three 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 was legal on monday should not be illegal on wednesday and then finally when you get to the point of the media that's 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 wainstein your comments on that might take the liberty of looking at them more attention to the classification of attention to giving legitimate whistleblowers a viable avenues other than the media to which they can turn reestablishing deterrence of leakers in the government so that those who leak have to reason to fear that they'll be prosecuted bringing down the weight of public opinion against leaker certainly and against those who publish vital secrets not just ordinary kinds of secrets that are the daily fare of our american journalism and in some extraordinary cases prosecution of media outlets that publish the crits which endanger the public  times where the storable in nature there was not a single document in that collection that was less than three years old some of the material that say been published by the new york times in the last year since nine eleven has been operational ongoing intelligence programs like th program the one 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 that's you know the seriousness of that i think the and i don't think they've 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 for such a i'm pleased to recognize the distinguished gentle a view from houston texas a very active member of the committee she chairman let me thank you very much and i don't want to preach presumptuous to suggest that this may be the last hearing of this session but 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 consequence if you will i sit on the homeland security committee and spending 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 marden day if you will whistleblowers and i know that there's been a distinction made but the pentagon papers sort of the after effect reports as opposed to these documents that are current and in place so i'd like you gentlemen to help me with the quandary that i'm 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 with chairman and you 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's important to really understand the law there's some dispute that the wi is a november twenty seventh letter from the state department saying don't release anything abbie it's good to see you again help me with that because there was an effort made i understand that  the difficulty of the as a knowledge of law is knowing that you're 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 what is the culpability i'm going to yield to you first since i just want to talk about the law and how does that relate to those that elements that you are addressing goes to the following issues when somebody is accused of violating seven ninety three or seven ninety eight under the present espionage act if they are a government employee we've discussed the fact that they don't have the same back and forth ability to show that they had a real date not have a reason to believe that their conduct would injure the united states or benefit an adversary or foreign country so in the context that you are asking and the one that this addressing which for example might be the wikileaks case the outside of that spear and 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's what i have what would harm what would you like redacted goes to something what it goes to is when the government prosecute somebody in that position that person the government  prove beyond 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 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'm still going to charge and let a jury decide that the intent was ok whatever jury instructions a judge will give and as one of the other members said the differences between trying that case in jurisdiction one vs jurisdiction two on something that's just called intent and i give me some sense of what where that plays a role again i think that the government's ability to regulate the activities of its own employees who've signed secrecy agreements  considerable and that that's where the focus should be on keeping that information secret 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 would be extremely careful because a schoenfeld a number of times identified the chicago tribune incident from world war two where the tribune published information that revealed the fact that we were aware of the japanese secret code and we've been using that as a way of dancing our own war ends 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 situation where there was a clear and imminent danger that posed a grave harm to the united states we would have lost a pivotal pivotal benefit in fighting world war two and that seems to me the paradigm case were 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 wiki leaks case comes close to that and it's important to say that's the situation where you can go after publishers or disseminat of information who are not in a special relationship with the government and that almost never happens and what it does happen it merits but it but beyond that we should be focusing our attention on the situation of keeping information secret in the first place in a house in the government where secrecy is necessary i don't like that mistrust so you have a different perspective but i think both of us have i think the same goal and then the homeland security committee now fool around with potential terrorist threats and or the new climate we live in but my quandary is if we freeze down on wiki leaks we freeze down even on information and that may help us in the war against terror and i think the professor the chicago tribune case really is of a different order problem that there there would have been the kind of immediate and irreparable harm that really does not flow from anything that appears in the wiki leaks documents but that's not to say that there is not significant harm from those from that release i mean i agree with you we are better informed now than we were two weeks ago before those documents about what our government does there 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 for a critical task for keeping the peace of  government to come into the world of twenty first century technology so that a young military personnel twenty three years old doesn't have the ability to hack into it they'll cancel his case and i don't think we're discussing that right now but we do have a burd responsibility you're 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 are consistent in our cables to our basic policy that puts a smile on my face but 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 that to me that's 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 a but i your message to me is that we now have to get more sophisticated in how we do and i see my time can i just get the last two or three witnesses to comment and i think i intent is in play here mister about that congressman i think i think that's right the only thing i would add and you mentioned this at the beginning of your question is if we're going to focus on the person who's doing the leaking of or focusing on the government ploy as i recall you professor stone suggested the other piece of this is whistleblower at another and to what extent current whistleblower laws are adequate to provide opportunities to government employees who have come across with this in his wrongdoing to have remedies other than go into their local newspaper and with that monitor think it's just worth noting that i believe last friday right the new a point person s three seventy two you know i'm not next federal whistleblower laws but i do think that recognizing that that is part of this conversation that federal whistleblower laws especially as a part of the intelligence community could actually meaningfully advance this conversation well by reducing the number of occasions where government employees will feel the need 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 also procedures user friendly procedures in those agencies so that if i see something corrupt or wrong and i want 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'll do that slavery but not necessarily damaging material that's very good question that actually harks back to something that abbe lowell mentioned about how back in two thousand there was a that's very clean you don't have to show damage you don't have to get into this back and forth of whether this was damaging to disclose secrets about the iraq war a good because the iraq war needed to be examined more closely it's just clear you have a responsibility to govern a ploy to protect classified information you willingly and knowingly disclose that you're guilty so that's not on the pro side the consulate of course is that as you point out there's so much information that's classified that it would it would be  chilling to many government employees when they're going to talk to people that all it takes is one step over the line and i get into one iota of classified information and i'm guilty intentionally disclosed that your belief that the first amendment confers on journalists that absolute right to publish classified should our government stake which i know it is not and i think from what i've heard on the panel there's some agreement with me that a story came out that cost the lives of tens of thousands of u s servicemen and prolong the war so i think the supreme court of course in the pentagon papers case five of the nine justices i had noted earlier did suggest that if a case came to them not as a prior restraint case but after the fact as it as an espionage act prosecution or section seven ninety eight prosecution they would strongly consider  as an independent protection so although that may be frustrating i think is there is a practical reality just no way to distinguish wiki leaks from the new york times the blogger they're all part of the freedom of speech that the first amendment protects and  better but i still go back to what i said intentionally until congress and particularly members of this committee addressed the issue of the classification process we're 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 classifieds i've heard some of you use the term improper classification who makes that decision i've heard the term authorized leak what in the hell is that authorized the leak is that only that you know a someone in the administration can do but we can't have what struck me again when i chaired the oversight committee in foreign affairs which we would get material that was acted page after page after page after page all you knew all you saw was the number and then of course the next day you'd read in the newspapers but i guess that was a good leak as opposed to a badly so i hope i would direct this to my colleague from iowa i hope with the new congress that congress conduct specie reeks of hearings where it demands an explanation of the process itself are we going to rely on a bureaucrat at a lower level to do the reduction who does all this help me with the mystery can anyone here i'm abbie nodding your head give it a shot i can 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 i've seen on the cases of litigated and you're raising a point so in a packed lobbyist case by the time we were done in getting ready for trial there was no fewer than i don't know four or five thousand pieces of paper that were in a classification mode at one level or another as an executive order which has criteria for 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've 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 you do what does that mean well i mean but then the second question is who gets to decide that's the key bell and many agencies what you'll find is that it's not just not the secretary or the deputy or the assistant secretary or it's equivalent it is the lowest level of person working on the subject with the end of every day but that's my concern well if that is that's my concern i think that issue is the predicate for addressing the concerns that you as a panel have have addressed you've got to begin there and we really have to do a sour 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 and we're just building up a backlog of classified information that i could 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 weiqi lea what we're not having access to in a democracy i guess and i hope that in the future it's address whether it's in this committee of any committee maybe a select committee is actually needed and people coming in who who actually do the classification not the secretary not the head of the agency but to hear it now i had occasion working with congressm where we had concerns about information that was being disseminated from the f b i it was very revealing in terms of how it was done and i'm not saying it was the classification was done in good faith but it clearly did not in my judgment meet any kind of standard terms of classification that's got to be  a boy you've got a couple of great assets at your disposal for the next session there is a terrific review board called the public interest the class cation board headed by marty faygo former head of the national  office's group of smart people are looking exactly these questions how do you change it on the front in so you don't because every single classification decision that a lowly bureaucrat makes generates a stream of cost to the taxpayer into the efficient flow of information that goes on indefinitely until somebody like me asked for that document get released that's a terrible way to do business it should be automatic after certain sunset on every one of the secrets you can call in those public interest the class board folks they give you some expertise there's a wonderful little office the information security oversight office those of us that audit the secrecy system there smart the head of that office is the guy who coined the term we keep mania that i've been using today in my statement call them in and give them more resources i think they got twenty nine people to ride herd on this massive over security system they need some help but they can guide you through how does a stamp get made in the last thing i would ask mr chairman we've done about four different postings that support the consensus on the committee of massive overclassification congressman poe commented on it agreed with congressman delahunt actually it seems that they actually agreed on this this is actually a piece of white house e mail is declassified by a process one week apart and the first time they cut out the egypt that week but libya this week i mean that's the level of subject we've got about five or six web postings of these kinds of graphic illustrations of the a class action problem that will help you get your arms around it and i hope to something about goes back to the integrity of the civil service and protecting and letting civil servants and people who work in the armed forces in 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's the highest moral standards and a lot of this idiocy and over classification 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'll just leave you one example forty years ago one agency of the government wanted to get the u s navy the amount of water pollution coming out of naval bases and the navy deny 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 or the soviets could use that information in order to determine how many sailors run the base no but that is a level of foolishness that could have been nipped in the bud if we supported our civil servants and and basically recognize that this is overall a struggle between individual conscience of people up against organizational machines that we call bureaucracy and we always should bring back the civil service the very short very compelling they all have to take we should protect them in making sure that it can be implemented in your daily work thank you very trent franks well thank you mr chairman i appreciate it appreciate all of you folks being here challenging subject this morning i think it's obvious to me perhaps to all of us that no human being regardless of their education or training is really competent to a pioneer or to know the full extent of the actual damage that a leak like wiki leaks could cause i mean i guess you could put a team of experts together to try to assess the future and the  potential undetermined damage and i just think that it would be completely a hopeless endeavor so i'm convinced obviously that julian assigns cannot possibly be able to to project what the potential damage of what he did is all about that's a concern significant point but in light of that obvious truth and i'm wondering if it's time perhaps for us to rewrite our statutes to stablish 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 michaud unfelt you mentioned in your testimony that the ill effects of information leaks can sometimes take you know years to manifest harbor and i'm one i'm going to try to get you to expand on that a little bit and that you know our government i understand actually considered prosecuting the author of that book but felt like the prosecution the public nature of it night to in light in japan even more than what the book did so i'm 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 or do you think a prosecutor would be able to show in this case and i mean i guess purposeful or malicious intent to aid in the bombing of pearl harbor would not be one of them that probably be too little too strong but what about perhaps just recklessness i know it's difficult to show malicious intent but yet the devastation that was caused it pearl harbor know my last memory of that reading there the numbers on that wars fifty million dead was kind of a big deal the whole war and so in light of this do you think that we should can reconsider the means re elements of our espionage statues and i've given you a complicated question there tell us about black chamber tell us how it all fits in how do you think that we would approach that today thank you very much congressman for the very interesting question i heard all yardley was  black chamber basically wrote it to make a pile of money he laid bare in that book the full history of american code breaking efforts including the successes in the washington naval conference of one hundred twenty one where we broke the japanese diplomatic codes were able to outfox them in those negotiations when that book came out it was treated much like regarded his own story in the times as a kind of interesting yarn highly entertaining american newspaper set about it but in japan 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  chairman my my time is up but i really want you know i appreciate the response and i hope it kind of puts things in perspective here sometimes there's no way to possibly anticipate what certainly can cause an in this case to really cause you panic completely rewrite sense there cogent and potentially could have prevented pearl harbor and in the nine one world that we live in it's a relevant consideration and i thank the speech cause harm one of the things that supreme court figured out pretty quickly is that almost all speech causes harm it's not harmless and so it made a terrible mistake during world war one which is that it took the position that because and what they figured out pretty quickly after that is that was that you can't prohibit speech to criticize an ongoing war because it might have speech does have harm and the pentagon papers although the court said it was not likely  that made it more difficult for us to negotiate if the standard focuses on harm generally when you've given up but thank you very much and we think franks for raising this very important hearing thank you panelists bearing through it before i ask a few questions i'd like to respectfully remind my colleagues that the a 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 then and until there is a trial on an indictment then mr assigns title to a presumption of innocence by law  indications from secretary robert gates that these the release is thus far have not significantly harmed overall u s interest and a quote from secretary gates is as follows the fact is governments deal with the united states because it is in their interests 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 contain leaks and i assume that they undermined national security and the ability of american diplomats to do their jobs and american personnel who  the new york times has also publishing this information and we aren't shutting down their website or encouraging an international manhunt for  editors and we cannot allow what outrage that we may have whether or not it be justified or not to cloud our judgment about occurred it is that we've been made aware of the softness in our protection of our important information and therefore we now because of  publishers of information and i trust that 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  a ministration has directed federal agencies to prohibit their employees from accessing wiki leaks documents on their work computers it is also been reported that state department employee and alumni of columbia university's school of international and public affairs has warned school officials that students interested in a diplomatic career should not access the documents even free internet access has been a priority for us as we have with other countries particularly china and we encourage them to open up to have  national security council staff under presidents ford carter and reagan fessor six stood up and i think an open meeting at columbia and said if there's any student of international affairs who is not reading the wiki leaks cables the should be thrown out of the profession because this is essential information their forces doing this is a silly their force is essentially restricting its own open source information gathered the library of congress is stopping the wiki sight this is just silly self defeating well i have to say on our website the national security archive we published the transcripts amount to a tongues meetings with richard nixon henry kissinger that's top secret information in china that would certainly be subject get a right to come prosecute on that basis i'm sorry i don't think we should look at our own laws and try to move to a different kind of standard about what transparency we can bring about in governments worldwide i think those recommendations should aspire to the second point is very well i think hillary clinton is not presently recalling her remarks when she in effect if anything lauded the  china for breaking through chinese government censorship on the internet and as you implied we can't we can't lecture the world in one direction and  engage in a kind of suppressive activity in our country hillary clinton would be a very good witness before this committee next year to explain not only gates has done which is downplayed the importance in terms of the damage and risks of the release of the state department cables the more gates and clinton downplayed as it seems the stronger case  documents of confidential documents some of which are secret and i think congressman i think there are unquestionably benefits but as professor having access having public access to information that wasn't in the public domain and that should have been is always a positive that the old aphorism sunshine is the best disinfectant you know i don't think the question is whether there's a benefit i think that seems pretty clear anyone else one quick thing is this is this is a clear benefit from these events because it's allowing congress to sift through again one hundred year old statute to ensure that it's still working the way  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 we have amongst us here in congress who feel that government you very much mr chairman and thank you very much for characterizing the hearing of the united states congress is something that's been official that hasn't been the most popular statements in reference to what we've been doing but thank you  first question is whatever we do here does have implications for matters that are really at the jurisdiction of other committees but very important and i think you all recognize it so i would want a yes or no from each of the witnesses because we are talking about the conduit we're talking about recipient of the information that's been provided them would you agree well yes or no is the yes but i would say it's moot because it would be our gods ok to apply it that way so yes they are recipient the statute will apply once they read disclose not it's not a crime to receive it's a crime to retransmit which they are doing by allowing people onto their site and like professor i think such an application would be a gross over application and constitution yes it would be a recipient and i guess it could fall within the statute but very unlikely that anybody would ever want to prosecute and it would have to wait while there is a provision that says you retain and do not say i'm with you mr nader i just it has huge implications unbelievable implications because then i really think you need to prosecute the person that provided the for the newspaper the person that provide the paper for the newspaper why are we doing that and you're saying that's unlikely but crazy things happen crazy things happen when people are scared and there's fear out there so this question will go to mr low and let's see who else and it's good mr bal that you'll have given a certain suggestions and i think they're excellent and it all comes down to i think even basic principles all along that's intent so let's say we tighten up how we classify information and we find this formula and we find the arbiter we've got the criteria it's tightened down it's legitimate classified and then someone violates their o that's easy i mean that person's going to be persecuted should be prosecuted and persecuted likely and that happens but now we go to that person that receives the information and you say that some slow i think you had introduced a clear and precise specific intent requirement that mr baldock mr lowell carefully define espionage intent to enter the united states how do you define specific intent when you just you can't say well i saw it and anyone would know is that this is the injurious to the legitimate interests of the united states are do you start having something at that point in time that you should assume a reasonable person should assume these things how do you is it just you know principles that we always apply because i understand i think you're 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're not culpable and never had that intent so we end up back on the intent question you the congress will end up in the intent or the courts will end up with the intent issue and when both of them do they'll look to various things that are as you pointed out true in every criminal case to look to see what a person accused intend by a person's statements the context in which they acted and the circumstantial evidence of a government employee sees that their immediate boss is talking to the press about a topic that person may have a good faith police that's ok to talk about even if it includes classified information  recipient is acting in context of his or her job as a lobbyist or as a member of the press or even in a free speech context and hear something and retransmits it because there's nothing that indicates that it is of any particular damage and it's part of the person's job it goes to the person's intent if the person sees that they are operating overtly and not covertly they're not stealing information they didn't pay for it they didn't bribe anybody for it then there is an evidence of their intent the issues of bad faith and good faith apply in almost the defendant acted quickly recklessly and without regard for any of the safeguards that are built into the statute but i otherwise told agree with mr lowell mr chairman thank you i do one nice observation and that is when we all went to law school we remember  times of war the law is silent the constitution is not a suicide pact the problem with today world is that wars are indefinite wars are open in wars are not even declare that's what really is probably one of the greatest problems for us and what's i guess the new normal out here thank you very much and you go back so we look forward to reciprocating next year thank you so much and i want to say to these seven gentlemen that have been with this 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