U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

33–835 PDF 2007

S. HRG. 109–838

EXAMINING DOJ’S INVESTIGATION OF JOURNALISTS WHO PUBLISH CLASSIFIED INFORMATION:

LESSONS FROM THE JACK ANDERSON CASE

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JUNE 6, 2006

Serial No. J–109–81

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 13

Grassley, Hon. Charles E., a U.S. Senator from the Stae of Iowa, prepared 

statement .............................................................................................................. 139

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 141

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Anderson, Kevin, Fabian and Clendenin, Salt Lake City, Utah ......................... 18

Feldstein, Mark, Director of Journalism Program, and Associate Professor 

of Media and Public Affairs, School of Media and Public Affairs, George 

Washington University, Washington, D.C. ........................................................ 26

Friedrich, Matthew W., Chief of Staff and Principal Deputy Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C. ... 3

Schoenfeld, Gabriel, Senior Editor, Commentary, New York, New York ........... 23

Smolla, Rodney, Dean, University of Richmond School of Law, Richmond, 

Virginia ................................................................................................................. 21

QUESTIONS AND ANSWERS 

Responses of Kevin Anderson to questions submitted by Senator Specter ........ 39

Responses of Mark Feldstein to questions submitted by Senator Specter ......... 45

Responses of Matthew Friedrich to questions submitted by Senators Specter 

and Leahy ............................................................................................................. 49

Responses of Gabriel Schoenfeld to questions submitted by Senator Specter .... 68

Responses of Rodney Smolla to questions submitted by Senator Specter .......... 76

SUBMISSIONS FOR THE RECORD 

Anderson, Kevin, Fabian and Clendenin, Salt Lake City, Utah, statement 

and attachment .................................................................................................... 81

Associated Press, Mark Sherman, Washington, D.C., April 18, 2006, article .... 90

Baltimore Sun: 

April 20, 2006, editorial ................................................................................... 92

April 22, 2006, article ....................................................................................... 93

CBS News, Washington, D.C., April 19, 2006, article .......................................... 95

CBS Worldwide Inc., Washington, D.C., April 19, 2006, article .......................... 97

Chicago Tribune, April 23, 2006, article ................................................................ 99

CNN, Washington, D.C., April 20, 2006, transcript ............................................. 101

Editor & Publisher, New York, New York, article ................................................ 106

Feldstein, Mark, Director of Journalism Program, and Associate Professor 

of Media and Public Affairs, School of Media and Public Affairs, George 

Washington University, Washington, D.C., prepared statement ..................... 107

Frankel, Max, New York, New York, letter and attachment ............................... 116

Friedrich, Matthew W., Chief of Staff and Principal Deputy Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C., 

prepared statement .............................................................................................. 135

Guardian, April 21, 2006, article ............................................................................ 140

Los Angeles Times, Nick Timiraos, April 19, 2006, article .................................. 143

Miami Herald: 

April 24, 2006 ................................................................................................... 144

May 2, 2006 ....................................................................................................... 145

Page

IV

New York Times, April 19, 2006, article ............................................................... 147

National Public Radio (NPR), Washington, D.C.: 

April 19, 2006, transcript ................................................................................. 149

April 23, 2006, transcript ................................................................................. 151

Presstime, Arlington, Virginia, May 2006, article ................................................ 152

Red Bluff Daily News, April 22, 2006, editorial .................................................... 158

Salt Lake Tribune, Salt Lake, Utah, article .......................................................... 159

San Francisco Chronicle, April 25, 2006, article ................................................... 161

Schoenfeld, Gabriel, Senior Editor, Commentary, New York, New York, statement and attachments ......................................................................................... 163

Seattle Post-Intelligencer, April 20, 2006, article ................................................. 204

Smolla, Rodney, Dean, University of Richmond School of Law, Richmond, 

Virginia, statement .............................................................................................. 205

Star-Ledger, Newark, New Jersey, April, 22, 2006, article ................................. 221

TPM Muckraker.com, April 19, 2006, article ........................................................ 222

Times-Tribune, Scranton, Pennsylvania, April 20, 2006, article ......................... 224

Wall Street Journal, April 19, 2006, article .......................................................... 225

Washington Post: 

April 19, 2006, article ....................................................................................... 226

April 20, 2006, editorial ................................................................................... 227

April 25, 2006, article ....................................................................................... 228

April 29, 2006, commentary ............................................................................. 229

(1)

EXAMINING DOJ’S INVESTIGATION OF JOURNALISTS WHO PUBLISH CLASSIFIED INFORMATION: LESSONS FROM THE JACK ANDERSON CASE 

TUESDAY, JUNE 6, 2006 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 9:30 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Grassley, Kyl, Leahy, and Feingold. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. It is 9:30, so the Judiciary Committee will 

proceed with this hearing on the subject of examining the efforts 

by the Department of Justice to control leaks by newspapers involving classified information. 

We know that leaks are a fact of life in Washington, D.C., and 

really virtually everywhere. There is an old adage that the ship of 

state leaks at the top, and we saw recently that it was true with 

the President of the United States making a disclosure. There are 

very important national security interests involved in maintaining 

the sanctity of classified information. At the same time, there is a 

tradition of ferreting out governmental wrongdoing—waste, corruption, inefficiency—by disclosures to the press, which function as the 

guardians of the public in many, many cases. Leaks are made for 

a variety of reasons, and while they have a very important social 

purpose, they also have the potential for harmful, deleterious effects on national security. 

This hearing will be looking into one aspect of expanding Executive authority, which we have seen in recent times with the 

warrantless national surveillance, with the signing statements 

where the President chooses which parts of legislation he likes and 

which parts he does not like, with the search and seizure on Capitol Hill, and a growing concern that the Congress of the United 

States has not exercised its constitutional responsibilities on oversight. 

There have been a series of activities which give cause for concern. In April of this year, a CIA employee was fired for allegedly 

disclosing the existence of secret CIA facilities in Eastern Europe. 

A Washington Post reporter conducted an expose based on that inVerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC
2

formation and won a Pulitzer Prize. We have seen an investigation 

into the disclosure of the identity of CIA agent Valerie Plame, leading to the jailing of New York Times reporter Judith Miller for 

some 85 days. 

In response, Senator Lugar introduced legislation, which was 

modified by the Committee and introduced again, which would 

grant protection to newspaper reporters on a shield. The proposed 

legislation is very carefully crafted to provide an exception if national security is involved. But it has to be genuine national security. The Valerie Plame investigation started off with a national security purpose but shifted at one point to an investigation as to 

whether there had been perjury or obstruction of justice before a 

grand jury. And while those are serious charges, they do not rise 

to the level of a national security interest which would warrant incarcerating a reporter. That ought to be in our society the very, 

very last report. So the overtone of that statute will be in issue as 

well. 

There has recently been the suggestion that newspapers and 

newspaper reporters can be prosecuted under a criminal statute 

which prohibits the disclosure of classified information. Highly 

doubtful in my mind that that was ever the intent of Congress, but 

those are the words which can be construed in a way to warrant 

such prosecution, different from another statute which provides for 

prosecution in the event that there is an assist to an enemy of the 

United States. 

In the famous Pentagon Papers case, United States v. New York 

Times, in a dictum Justice White said, concurred in by Justice 

Stewart, that the statute would not provide for injunctive relief to 

stop a newspaper from publishing material, but would provide the 

basis for a criminal prosecution against a newspaper. 

So these are very, very serious issues which we are looking at 

today, especially in the context of expanding Executive power in 

many, many directions. 

We have as our first witness today Matthew Friedrich, who is 

the Chief of Staff of the Criminal Division, Principal Deputy Assistant Attorney General. Mr. Friedrich received his law degree from 

the University of Texas, bachelor’s from the University of Virginia. 

He clerked with Judge Royal Ferguson in the United States District Court for the Western District of Texas. In 1995, he joined the 

Tax Division of the Department of Justice. In 1998, he returned to 

Texas as an Assistant U.S. Attorney. In 2001, he became an Assistant U.S. Attorney in the Eastern District of Virginia, and now he 

holds the position, as noted, of Principal Deputy Assistant Attorney 

General. 

Thank you for coming in today, Mr. Friedrich. I would appreciate 

it if you would stand to take the oath. Do you solemnly swear that 

the testimony you will give before the Judiciary Committee will be 

the truth, the whole truth, and nothing but the truth, so help you 

God? 

Mr. FRIEDRICH. I do. 

Chairman SPECTER. Thank you. You may be seated, and we look 

forward to your testimony. 

3

STATEMENT OF MATTHEW W. FRIEDRICH, CHIEF OF STAFF 

AND PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, 

CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. FRIEDRICH. Thank you, Mr. Chairman. 

Mr. Chairman and members of the Committee, thank you for the 

opportunity to discuss with you today the difficult issue of unauthorized disclosures of classified information, sometimes referred to 

as ‘‘leaks.’’ I intend to explain the position of the Department of 

Justice with respect to the scope of the relevant statutes as they 

relate to the press and the willful dissemination of classified information. In doing so, I cannot comment on any pending case or investigation. 

In response to a recent series of leaks of classified information, 

President Bush has stated that such leaks have damaged our National security, hurt our ability to pursue terrorists, and put our 

citizens at risk. Porter Goss, then-Director of the Central Intelligence Agency, stated in February of this year that leaks have 

alerted our enemies to intelligence-collection technologies and operational tactics and ‘‘cost America hundreds of millions of dollars’’ 

to repair the damage caused by leaks. The WMD Commission made 

similar findings in its report. Members of Congress in both the 

Senate and the House have repeatedly acknowledged the damage 

caused by leaks, particularly in this post-September 11th environment. 

The Department of Justice is committed to investigating and 

prosecuting leaks of classified information, and Congress has given 

the Department the statutory tools to do so. Several statutes prohibit the unauthorized disclosure of certain categories of classified 

information, the broadest of which is Section 793 of Title 18, which 

prohibits the disclosure of information ‘‘relating to national defense.’’ Also, Section 798 of Title 18 prohibits the unauthorized disclosure of information relating to communications intelligence activities. 

On May 21, 2006, Attorney General Gonzales was asked about 

the possibility of prosecuting members of the press for publishing 

classified information, and he stated, in part, as follows: ‘‘There are 

some statutes on the books which, if you read the language carefully, would seem to indicate that that is a possibility.’’ There has 

been considerable attention paid to the Attorney General’s remarks. It is critical to note, however, that the Attorney General is 

not the first one to recognize the possibility that reporters are not 

immune from potential prosecution under these statutes. Many 

judges and commentators have reached the same conclusion. For 

example, as I believe you pointed out, Mr. Chairman, in the Pentagon Papers case, there may be such a precedent there. In that 

case, obviously, the United States sought to restrain the New York 

Times from publishing classified documents relating to the Vietnam War. 

While the Supreme Court did not decide the question of whether 

the First Amendment immunizes the press from prosecution for 

publishing national defense information given to them by a leaker, 

five concurring Justices questioned the existence of such blanket 

immunity. In his concurring opinion, Justice White stated: ‘‘[F]rom 

4

the face of [the statute] and from the context of the Act of which 

it was a part, it seems undeniable that a newspaper, as well as 

others unconnected with the Government, are vulnerable to prosecution under 793(e) if they communicate or withhold materials 

covered by that section.’’ 

Further, the Court of Appeals for the Fourth Circuit has affirmed 

that the First Amendment does not prevent prosecutions under 793 

for unauthorized disclosures of classified information and did so 

over the objection of various news organizations that appeared in 

the case as amici to support the defendant’s First Amendment arguments. Likewise, it is the conclusion of legal commentators with 

respect to Section 798 that reporters are not exempt from the reach 

of this statute if the elements of the statute are otherwise met. 

I would emphasize, however, that there is more to consider here 

beyond the mere question of the reach of the laws as written. The 

Department recognizes that freedom of the press is both vital to 

our Nation and protected by the First Amendment. 

The Department has never in its history prosecuted a member of 

the press under Section 793, 798, or other sections of the Espionage 

Act of 1917 for the publication of classified information, even while 

recognizing that such a prosecution could be possible under the 

law. 

As a policy matter, the Department has taken significant steps 

to protect, as much as possible, the role of the press in our society. 

This policy is embodied in Section 50.10 of Title 28 of the Code of 

Federal Regulations, which requires that the Attorney General approve not only prosecutions of members of the press but also investigative steps aimed at the press, even in cases where the press is 

not itself the target of the investigation. This policy—voluntarily 

adopted by the Department—ensures that any decision to proceed 

against the press in a criminal proceeding is made at the very 

highest levels of the Department. 

In a press conference last week, the Attorney General stated that 

the Department’s ‘‘primary focus’’ is on the leakers of classified information, as opposed to the press. The strong preference of the Department is to work with the press not to run stories containing 

classified information, as opposed to other alternatives. The Attorney General has made consistently clear that he believes that our 

country’s national security interests and First Amendment interests are not mutually exclusive and can both be accommodated. 

I appreciate very much the opportunity to appear before you and 

would be happy to answer your questions. 

[The prepared state of Mr. Friedrich appears as a submission for 

the record.] 

Chairman SPECTER. We have been joined by Senator Grassley. 

Senator Grassley, would you care to make an opening statement? 

Senator GRASSLEY. I think I will put the statement in the record. 

It is a very short statement. I just think I will put it in the record. 

[The prepared statement of Senator Grassley appears as a submission for the record.] 

Chairman SPECTER. Mr. Friedrich, you say—I believe your 

words—that it is undeniable that the Department of Justice has 

the authority to prosecute a newspaper and a reporter for disclosure of classified information? 

5

Mr. FRIEDRICH. I believe I was quoting one of the concurring 

opinions in the Pentagon Papers in using that word. 

Chairman SPECTER. Well, aside from the concurring opinion of 

Justice White, joined in by Justice Stewart, is it the position of the 

Department of Justice today that Section 793 would warrant—

would authorize the prosecution of a newspaper and a reporter for 

publishing classified information? 

Mr. FRIEDRICH. I think the answer to that, Senator, is that the 

Department has consistently interpreted that statute so as to read 

it as to apply to anyone to whom the elements of the statute—

Chairman SPECTER. You are giving me a yes answer? 

Mr. FRIEDRICH. I am, sir. 

Chairman SPECTER. And is it the position of the Department of 

Justice that under Section 798 a newspaper and a reporter can be 

prosecuted criminally for the disclosure of classified information? 

Mr. FRIEDRICH. I would provide the same answer there, Senator. 

Chairman SPECTER. The answer is yes? 

Mr. FRIEDRICH. Yes. 

Chairman SPECTER. So you are saying that the New York Times 

and its reporter, James Risen, are subject to prosecution for the 

disclosures last December 17th about the surveillance program 

without warrants? 

Mr. FRIEDRICH. Obviously, Senator, I can’t comment as to any 

particular case or any specific matter. As a general policy proposition, I think the Department has consistently taken the position 

with respect to those particular statutes that it does not—they do 

not exempt a class of professionals, any class of professionals, including reporters, from their reach. I think it is important at the 

same time to bear in mind what the Attorney General said recently, which is that our primary focus is on the leakers themselves, as opposed to members of the media. 

Chairman SPECTER. I understood what you said about primary 

focus, but primary focus leaves latitude for a secondary focus. 

Mr. FRIEDRICH. It would. 

Chairman SPECTER. Has the Department of Justice considered 

the prosecution of any newspaper or any newspaper reporter for 

the disclosure of classified information? 

Mr. FRIEDRICH. Again, Senator, you know, I don’t think it would 

be appropriate for me to comment as to whether or not—

Chairman SPECTER. I am not asking you about a specific case. 

I did and you declined to answer, and I might have pressed it but 

I am not. But I am asking you whether there is any case, without 

specifying the case, where the Department of Justice has considered prosecuting a newspaper or a reporter for the disclosure of 

classified information. 

Mr. FRIEDRICH. With respect, Senator, I think that I have to decline to answer that question as well. I don’t think it would be appropriate for me to give an indication one way or another, and I 

hope people don’t read anything into my answer one way or another. 

Chairman SPECTER. Well, I disagree with you, Mr. Friedrich. I 

understand your point in not talking about a specific case. I do not 

agree with it, but I understand it. But I do not even understand 

your point in declining to answer whether the Department of JusVerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC
6

tice has ever considered it. The answer to that would lead to some 

other questions as to—go ahead. I see you want to speak. 

Mr. FRIEDRICH. Just to clarify, I heard you initially ask me is it 

being considered now. I heard you a moment ago ask has it ever 

been considered. My understanding is there are historical examples. I think some of the later panelists may be able to comment 

more cogently than I can about historical examples in which that 

possibility—

Chairman SPECTER. I am not interested in history this morning. 

I am interested in current events. I am interested to know whether 

this Department of Justice, say the Ashcroft Department or the 

Gonzales Department, has ever considered the prosecution of a 

newspaper or a reporter for disclosure of classified information. 

Mr. FRIEDRICH. With respect, Senator, I believe I have to decline 

to answer that question. 

Chairman SPECTER. The Lugar bill, which has been significantly 

modified in Committee, provides for a reporter’s shield but has an 

exception if there is a matter of national security, and it essentially 

calls upon the court to undertake a weighing of the public interest 

in the disclosure of the information to ferret out wrongdoing or the 

press’ traditionally historic role in disclosing wrongdoing contrasted 

with the national security interest involved. 

Do you think that that is an appropriate standard for weighing 

newspaper privilege contrasted with the interest of national security? 

Mr. FRIEDRICH. As to the general matter of whether such a privilege should be codified, I believe that the Department has consistently taken the position that such legislation is not needed and 

that the procedures and policies that the Department has in place 

with respect to the circumstances in which compulsory process 

should be issued against reporters are themselves a sufficient safeguard. 

Chairman SPECTER. Well, the red light went on, and I do not 

usually transgress, but with Senator Grassley’s acquiescence, I am 

going to ask an important followup question. Do I have your consent, Senator? 

Senator GRASSLEY. You do. 

Chairman SPECTER. I appreciate that you do not think legislation 

is necessary, and I am not surprised. The administration does not 

think legislation is necessary to deal with unauthorized surveillance. The administration as yet has not provided an answer to 

this Committee on legislation, which has been pending for weeks, 

which would give jurisdiction of that program to the Foreign Intelligence Surveillance Court to determine constitutionality. Every 

time the Congress asserts some oversight authority, the administration pulls back. 

When there was a pressure applied to have the Intelligence Committees informed about the warrantless searches, the administration declined, even though the National Security Act of 1947 mandates it for committees. 

When this Committee, when the Judiciary Committee became active, the administration relented and conceded to allow a Subcommittee of the Intelligence Committee, seven Senators, to know. 

And the House at first resisted a Subcommittee and then finally 

7

acquiesced on an 11-person subcommittee, and then only in the 

face of the Hayden nomination was the administration dragged 

kicking and screaming into complying with the National Security 

Act of 1947 to inform the Intelligence Committees. 

So I am not surprised that the administration does not think 

that legislation is necessary. But my question was not whether the 

administration thought legislation was necessary. My question is 

whether you think that if there is legislation, it is appropriate to 

have a balancing test where a court would have the authority to 

weigh the public policy importance of the national security interest 

contrasted with the public policy importance of the disclosure. 

Mr. FRIEDRICH. Senator, I think the best way to answer that is 

in the context—I know that Deputy Attorney General Comey at the 

time provided a statement with respect to the media shield legislation. This panel also heard from U.S. Attorney Chuck Rosenberg, 

who discussed in detail the Department’s position at the time with 

respect to media shield. 

I think the overall objection would be that the media shield legislation would shift from the executive branch to the courts the decision as to whether a subpoena is needed, what the competing interests are, how fast it needs to be issued, whether or not it is essential to the case. We feel that those—in terms of the Department’s 

exercise of its responsibility in this area, I think as to confidential 

source subpoenas, something like only 13 have been issued in the 

last 15 years. That would be on the average something of one a 

year or less. I think the historical record would be that the Department has responsibly exercised its authority in this area and that, 

you know, there are going to be occasions when we need to move 

quickly. 

I accept that the balance you pose is an important one. I think 

that the—I would like to think the record of the Department is 

that it has exercised its judgment in this area responsibly. And 

let’s not forget, I mean, there are occasions when it may be important to move very quickly in terms of the issuance of compulsory 

process. I think that the example that Deputy Attorney General 

Comey gave—

Chairman SPECTER. Just a second. 

Mr. FRIEDRICH. I am sorry, sir. 

Chairman SPECTER. Go ahead. 

Mr. FRIEDRICH. I think, sir, the example that Deputy Attorney 

General Comey gave in a prepared statement that he rendered was 

an occasion that came up on the afternoon of September 11th when 

the U.S. Attorney’s Office in San Francisco wanted to issue a subpoena to a news organization which had received information, I understand, from some type of source indicating that bad things 

would happen on that day. I do not have any factual knowledge of 

that situation, but that was the example that Deputy Attorney 

General Comey gave, and I think it certainly highlights the fact 

that there may be a need to move quickly, and this legislation I 

think might compromise that. 

Chairman SPECTER. Well, I will pick up on your point about 

shifting the decision from the executive branch to the judicial 

branch, which is exactly what I think our Constitution requires. 

8

Senator Leahy, would you mind yielding to Senator Grassley? I 

intruded on his time, and he has a 10 o’clock— 

Senator LEAHY. No, I have no objection. I came in late as it was. 

Chairman SPECTER. Senator Grassley? 

Senator GRASSLEY. Thank you, Senator Leahy. 

When Director Mueller was before this Committee just a few 

weeks ago, I asked him about the Bureau’s attempt to obtain Jack 

Anderson’s papers by convincing the 79-year-old widow to sign a 

consent form that she says she did not fully understand. I wanted 

to know at that time whether that was an appropriate investigative 

technique, but Director Mueller said at that time that he did not 

know enough about the circumstances to answer my questions. In 

preparing to testify here today, I would hope that you have taken 

some time to learn the details of what the agents did in this case 

and why they did it. So I ask you, Did the agents who went back 

and contacted Olivia Anderson without her family’s permission act 

appropriately? 

Mr. FRIEDRICH. Senator Grassley, I think that that is a question 

that I am not going to be able to shed light on, but I want to carefully explain the reasons why I cannot. First of all, there is a pending trial in the Eastern District of Virginia called the Rosen and 

Weissman case, and in that case, the defense in that case has filed 

a motion to dismiss the indictment for prosecutorial misconduct 

based upon the actions taken in the Anderson matter. My understanding is that the district judge denied that particular motion 

but that that case remains pending. And since it is a part of pending litigation or relevant to a part of pending litigation, I don’t 

think that it is something that I can comment on. 

My understanding, however, Senator, is that the Bureau is following up on the questions you asked and that they intend to submit some type of response to you. And I don’t want to interpose myself in the middle of that. 

Senator GRASSLEY. And your view is that the circumstances in 

the Anderson questioning could influence that case, that other 

case? 

Mr. FRIEDRICH. That was the position—yes, sir. The position that 

the defense has taken is that there is a factual link between the 

action in the Anderson matter and the pending investigation that 

has resulted in a trial in the Eastern District of Virginia. And since 

that is the circumstance, I simply just can’t comment on that matter. 

Senator GRASSLEY. According to Kevin Anderson, he informed 

the FBI that he was acting as his mother’s attorney, and he authorized the first meeting between the mother and the FBI. However, he says he did not authorize and was unaware of the second 

meeting where the FBI got her to sign a consent form. Can you explain the Justice Department’s policy on contacting a witness who 

was known to be represented by counsel? And assuming that the 

Anderson family is correct with what happened, did the actions of 

the agency in this case violate that policy? 

Mr. FRIEDRICH. Certainly, Senator, speaking generically—as a 

general matter—there are very specific policies that the Department has with respect to contact with represented parties. There 

are also bar rules that apply as well. I would say, you know, the 

9

general rule as to contact with represented parties is that, as an 

attorney, you are not supposed to do it. There are exceptions to 

that under certain circumstances, but certainly as to Department 

lawyers, those policies exist. 

Senator GRASSLEY. Well, then, did the actions of the agents in 

this case violate that policy? 

Mr. FRIEDRICH. Again, Senator Grassley, with respect to this specific factual circumstances, I don’t have a specific comment on that 

for the reasons that I had mentioned earlier. I will tell you as a 

general matter there are some distinctions between the contact 

with represented parties rules as they apply to Department lawyers versus FBI agents. There are some differences between the 

ways in which those standards apply. Lawyers are bound by certain sources of law and policies; whereas, agents, depending on the 

circumstance, may not be bound by the same authorities. 

Senator GRASSLEY. Well, then, let’s go to the issue of classified 

information. There is some disagreement whether these papers 

contained classified information, and I would think the family 

would know more about that than the FBI. 

The family has said that the files probably do not contain classified documents, and the FBI claimed that Professor Feldstein confirmed it. However, Professor Feldstein denies that he told the FBI 

that and says that he has seen no classified material in the documents. So which is it? Does the FBI have a solid reason to think 

that there is classified information in the files that would be harmful to the national security if the FBI did not remove them? 

Mr. FRIEDRICH. There again, Senator Grassley, I don’t believe I 

can comment on the Anderson matter specifically for the reasons 

that I had mentioned earlier, and hopefully the Bureau will be submitting some type of factual submission to you on that. 

Senator GRASSLEY. Well, has the FBI taken time to get a subpoena or search warrant to force that issue? 

Mr. FRIEDRICH. Again, with respect, I cannot comment specifically with respect to the Anderson matter, Senator. 

Senator GRASSLEY. Well, Mr. Chairman, I am very disappointed. 

We asked some of these questions of Director Mueller. I will bet 

that has been more than a month ago, and we do not have any 

more answers. And I would think that the Department would send 

somebody here to testify that could answer our questions if they 

have any respect for this Committee whatsoever. I yield. 

Senator LEAHY. I think that answers the question. They do not 

have any respect for this Committee. Why in heaven’s name were 

you sent up here if all you are going to do is take the Fifth Amendment. 

Chairman SPECTER. I would like to recognize you, Senator Leahy. 

Senator Leahy? 

[Laughter.] 

Senator LEAHY. Thank you, Mr. Chairman. I mean, you are basically taking what could be called a testifying Fifth Amendment. 

You should be ashamed of yourself, or your superiors should be 

ashamed of themselves. Why in heaven’s name were you sent up 

here? I mean, you have been asked by friendly Republicans, no 

matter what questions you are asked, ‘‘Oh, I don’t think I can anVerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC
10

swer. I don’t think I can answer.’’ Why were you the one picked to 

come up here? 

Mr. FRIEDRICH. Senator, I can tell you my understanding, that 

on a staff-to-staff level as between our legislative staff and the staff 

of the Chairman, that it was made clear before I came up here that 

I would not be able to talk about the Anderson—

Senator LEAHY. Well, this is what happens no matter what, from 

the Department of Justice or the FBI or anything else. Anytime 

you ask anything where there might have been a screw-up by this 

administration, ‘‘I don’t think I can answer that. I am not really 

taking the Fifth. I just won’t answer.’’ 

It is very, very frustrating. There is this arrogance in this administration against any kind of oversight, probably because they basically have—except possibly for this Committee—a rubber stamp 

Republican leadership that allows them to do anything they want. 

But that is what you are doing. 

Let me ask you this: Is there any truth to the fact that some of 

these papers were looked at because it goes into the personal life 

of J. Edgar Hoover? 

Mr. FRIEDRICH. Senator, again, with respect to the Anderson 

matter, I am not able to comment on that matter at all. 

Senator LEAHY. So what you are doing, you are sent up here to 

be a punching bag. Is that it? 

Mr. FRIEDRICH. Senator, again—

Senator LEAHY. You don’t have to answer. I realize that. It is like 

the Attorney General. Is there any questions you guys are allowed 

to answer other than your title, the time of day? I mean, is this 

sort of like a prisoner-of-war kind of thing? 

Mr. FRIEDRICH. Senator, I can tell you that, again, my understanding in coming up here was on a staff-to-staff level that I 

was—I was led to believe that the Chairman’s staff was informed 

that I would not be able to answer questions about the Anderson 

case, precisely for the reasons that I discussed. 

I am prepared, and if you will note the statement that I gave 

specifically relates to the law relating to the applicability of the Espionage Act and other statutes that go to the disclosure of classified information, that—

Senator LEAHY. Well, let me ask you a little bit about that then. 

We have the Espionage Act. We talk about how that can be used. 

It can also be used, if need be, to chill dissent. This administration 

has spent billions of dollars—that is billions with a ‘‘b’’—to classify 

far more material than any administration in history, including the 

administration during World War II or World War I when we had 

real reason to do it. We found that in 2004 the Government made 

15.6 million classification decisions. Sometimes they classified 

something that had been on a Government website for months or 

even years. People had downloaded it thousands of times. Suddenly 

they say it is classified. 

We know some of this intelligence information was classified simply to cover up mistakes made by this administration. In fact, 

many, many, many, many times things were classified to cover up 

mistakes by the administration. If there was improper classification of intelligence information, would that be a proper defense to 

criminal charges brought under the Espionage Act? 

11

Mr. FRIEDRICH. I think that that would—I think improper classification might be a defense to certain statutes. 

Senator LEAHY. The Espionage Act? 

Mr. FRIEDRICH. That one I would have to check in particular. I 

am not certain. 

Senator LEAHY. For a moment there, I actually thought I was 

getting an answer and I was about to applaud you. It would be so 

unprecedented. And I hate to even highlight it because I do not 

want you to get fired for breaking precedence with the Department 

of Justice. But, you know, if Daniel Ellsberg had not leaked the 

Pentagon Papers to the New York Times and the Washington Post, 

we may never have known about the official misconduct during the 

Vietnam War. If Special Agent Coleen Rowley had not publicly revealed problems with the FBI’s counterterrorism investigation, we 

may never have known how this administration screwed up before 

9/11 and failed to connect the dots. Should Government be able to 

use the threat of criminal prosecution to shield the public from revealing its own mistakes? 

Mr. FRIEDRICH. I think the answer to that, Senator, is that there 

is the Intelligence Community Whistleblower Act of 1998 that is 

set up for that specific purpose. If a member of the intelligence 

community has concerns about the legality, has an urgent concern 

about something that they are working on, believes it may not be 

legal, there is a specific process that is in place that is set up so 

that they can bring that to the attention of the Inspector General 

of their agency and the matter can be taken up from there all the 

way to the Hill Intelligence Committees, if necessary. So I think 

that—

Senator LEAHY. I am talking about people at the Department of 

Justice. 

Mr. FRIEDRICH. I am sorry? 

Senator LEAHY. What about with people within the Department 

of Justice? Senator Grassley, he and I and others have worked very 

hard on whistleblower legislature. But it seems anytime anybody 

uses Whistleblower, it is a career ender. They get shunted aside. 

They get put into non-work situations. Certain administrations—

and this is something that probably reflects most administrations—

will come down on them like a ton of bricks if they use it. But you 

think that is the only protection, the whistleblower statutes? 

Mr. FRIEDRICH. What I was answering, Senator, is some have 

suggested simply that because there have been some leaks of classified information in the past that some have deemed to have important policy or historical value, you know, that that simply 

should make the wholesale leaking of classified information OK 

whenever someone feels like publishing it, because there have been 

occasions when such leaks have revealed even illegal conduct. And 

my response to that is that that is a false dilemma because there 

are procedures in place like the Intelligence Community Whistleblower Act that would allow those concerns to be handled in a classified environment, all the way up to the Hill Intelligence Committees. 

Senator LEAHY. Well, let’s go into the other stuff, though, when 

somebody does give information out to the press, the subject of this 

hearing. I will put my full statement in the record and not take my 

12

time for that. But let me ask you this, you mention in your statement the Department’s official policy with regard to the issuance 

of subpoenas to members of the news media. It requires the Attorney General to approve not only prosecutions of members of the 

press, but investigative steps aimed at the press, even in cases 

where the press itself is not the subject of an investigation. So my 

three questions are fairly easy. 

First, did Attorney General Gonzales expressly authorize the 

FBI’s attempt to rummage through Mr. Anderson’s papers? If not, 

who did? 

Second, has the FBI made any attempt to obtain the information 

from alternative non-media sources, which, as you testified, is part 

of the procedures? 

And, third, does the important public policy against Government 

intimidation or harassment of the press become obsolete if a journalist has died? 

Mr. FRIEDRICH. Taking the first two questions, Senator, again, as 

I said before, I can’t comment on the Anderson matter specifically, 

but what I can tell you is that the procedures that are in place are 

geared toward the issuance of compulsory process, such as a subpoena. If there is a circumstance in which information is simply requested as a generic matter—

Senator LEAHY. But if you go to an elderly widow shortly after 

her husband has died and have FBI agents show up and say, ‘‘We 

want these papers,’’ you don’t have to get any authorization for 

that? 

Mr. FRIEDRICH. What I can tell you, Senator, as a general matter 

is that those procedures are geared toward the issuance of compulsory process. You will notice that in other parts of the policy, it 

asks questions like, Have we attempted to obtain cooperation? 

Have we attempted to obtain the information from other means? So 

that would seem to suggest that the general policy would be to try 

to get voluntary compliance as opposed to issuing compulsory process. 

Senator LEAHY. And it is totally voluntary if an elderly widow is 

faced with FBI agents flashing badges and saying, ‘‘We want these 

papers.’’ 

Mr. FRIEDRICH. Again, Senator, I cannot comment on the Anderson case. 

Senator LEAHY. And the rest of my question I assume you are 

not going to answer, so—

Mr. FRIEDRICH. I would be happy to try to answer any additional 

questions you have. 

Senator LEAHY. No, no. The rest of that question. It is a threepart question. I mean, I asked—

Mr. FRIEDRICH. Would you mind restating, sir, your third question? 

Senator LEAHY. Did the FBI make any attempt to obtain the information from alternative non-media sources? And you give the 

same non-answer to that. Is that correct? 

Mr. FRIEDRICH. I believe that your third question was something 

different, but I may be mistaken. 

Senator LEAHY. The second part, did they make any other attempt. The third part was, does the important public policy against 

13

Government intimidation or harassment of the press become obsolete once a journalist dies? 

Mr. FRIEDRICH. Senator, I think that—let me separate that question, if I could, into the issue of deceased reporters versus deceased 

sources. As to the applicability of that policy toward deceased members of the media, you know, I doubt that that is something that 

has come up often. But in preparation for this hearing and having 

talked to others in the Department about it, I think that this is, 

frankly, an area that the Department should take a look at. 

What I can tell you in the interim is as we are taking a look at 

it, if a case comes up which involves—where the Department is 

considering the issuance of compulsory process to the estate of a 

deceased reporter, even though these policies might not on their 

face apply, I will give you an assurance on behalf of the Department that they will be followed until we can followup and give you 

an answer on that. 

Senator LEAHY. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Leahy, and your full 

statement will be made a part of the record. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. Before turning to Senator Feingold, I have 

just a brief comment. As you have noted, there is a certain level 

of concern between the Congress exercising oversight and the responses of the Executive, and we fully appreciate the inherent constitutional authority the President has under Article II and the 

statutes which involve the Foreign Intelligence Surveillance Act 

and questions whether there is inherent power for the electronic 

surveillance program, and sometimes the discussions get a little 

heated. Senator Leahy and I have been able to maintain a pretty 

cool atmosphere. I don’t really think anybody thinks you ought to 

be ashamed of yourself. You are carrying out the instructions from 

the Department of Justice, and we understand that. And we will 

pressure you for information to the extent we can in a respectful 

manner, and we will not use you as a punching bag. And when we 

question you, to the extent we can, we have also to question the 

Attorney General. He is going to be back before this Committee 

later this month, and we understand that you work for him and 

work for the Department. 

Senator Feingold? 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. Just a brief statement. Thank you for holding the hearing. A free society cannot long 

survive without a robust free press, and that is why I have expressed concern before about the chilling effect of high-profile contempt prosecutions of journalists. It is also why I support a Federal 

reporter’s shield law to join the reporter’s privilege that is already 

recognized in 49 States plus the District of Columbia. 

It is also why I am deeply worried about possible prosecution of 

journalists under the Espionage Act of 1917 for publishing classified information. As we all know by now, the Attorney General a 

few weeks ago was asked about this possibility. He responded that, 

14

‘‘There are some statutes on the books which, if you read the language carefully, would seem to indicate that that is a possibility.’’ 

That may not sound like it, but it was a very dramatic statement. The Espionage Act has never before been used to prosecute 

journalists for publishing classified information, and there are serious questions about whether Congress intended it to apply to journalists. It also poses very serious First Amendment questions that 

I know some of the witnesses will be addressing and have addressed. 

Mr. Chairman, of course, we must take the leaks of classified information very seriously, but we have other tools at our disposal. 

Individuals who have security clearances and have made a commitment to the United States Government to keep it secret should be 

prosecuted if they violate the law by leaking classified information. 

That is where our Government’s enforcement focus has always 

been, and I think that is where it should be. We can be tough on 

leakers without going after journalists and creating a very significant chilling effect. But I am grateful that you are having this 

hearing, Mr. Chairman, and I appreciate the opportunity to make 

a brief statement. 

Chairman SPECTER. Thank you very much, Senator Feingold. 

Mr. Friedrich, going back to your opening statement, I had asked 

you about the legislation introduced by Senator Lugar, and since 

modified in the Committee, about establishing a balancing on a 

shield or a reporter’s privilege in terms of weighing the public policy interests of the First Amendment and public disclosure contrasted with the national security interest involved. And you responded to that that your Department was opposed to that on the 

ground of transferring responsibility from the executive branch to 

the judicial branch. And my question really turns on the preference 

of having the judiciary make a determination as opposed to the executive branch. 

In the section that you refer to, 50.10, the standard as set forth 

on the Department of Justice decision to conduct an investigation—

to move into the area where there are news-gathering interests is 

to ‘‘strike the proper balance between the public’s interest in the 

free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.’’ 

Well, in a case where you have a constitutional issue of freedom 

of the press and you have the weighty considerations involved in 

that kind of a balancing, isn’t it the traditional standard in this 

country in case of a contest to have a matter decided by the courts 

instead of by the executive branch, which has a unique interest in 

the prosecution? 

Mr. FRIEDRICH. Let me make two points there, Senator. First of 

all, as a practical matter, once a subpoena or once compulsory process is cut, you know, if the newspaper opposes that, they would file 

a motion to quash, which would take that matter into the courts 

at that point, and the courts would be able to make whatever determination they want. So far as a constitutional balancing, obviously the Branzburg case has held as a constitutional matter that 

there is not a right of reporters to appear not to testify under—the 

15

First Amendment does not create a bar to that regardless of any 

pledge that a reporter may have made to his or her sources. 

So I think so far as the constitutional issue in terms of the 

issuance of process, I believe that the Court has answered that 

question. There is still an open question as to whether or not there 

may be a privilege at common law, but I think as to the constitutional question, I believe that that question has been answered. 

Chairman SPECTER. Well, whether there is a privilege in common 

law is not determinative if Congress decides to create a privilege. 

There is no newsman’s privilege at common law. There is a husband and wife privilege. There is a client-attorney privilege, although there is some reason to doubt whether there is anymore an 

attorney-client privilege with what the Department of Justice is 

doing today, with the coercive activities to get lawyers and clients 

to waive the attorney-client privilege. 

But moving aside from the common law privilege issue, which is 

not relevant here, isn’t it desirable to have the Congress make a 

determination as to what the considerations are as opposed to, as 

you say, have the judge do whatever he or she wants? 

Mr. FRIEDRICH. There, Senator, again, I think that the position 

of the Department—and I know you have heard testimony as to 

that issue from a number of representatives from the Department—has consistently been that that legislation in creating a 

media shield is not needed, that it would slow down the effective 

administration of justice, that—

Chairman SPECTER. Slow down the effective administration of 

justice to have Congress establish standards for what the privilege 

is, on a constitutional issue? 

Mr. FRIEDRICH. If that would mean creating a media shield law 

under which the Department in every case in which it wanted to 

issue a subpoena would have to go to court to do so before it could 

be issued, yes, I think that would slow the process down. I know 

even in the case of litigating privilege matters in the grand jury 

context sometimes—

Chairman SPECTER. Well, our legislation does not require the Department of Justice to go to court before issuing a subpoena, and 

our legislation provides for a statutory privilege and establishes 

legislative standards as to what the courts should consider in determining whether the privilege is valid. 

Mr. FRIEDRICH. Senator, I will be happy to have folks at the Department take a closer look at that bill and submit to you a more 

detailed response as to what the position of the Department is. 

Chairman SPECTER. Well, the red light went on when you started 

your answer, but if you can get a more detailed response from the 

Department of Justice, more power to you. Thank you. 

Senator Leahy? 

Senator LEAHY. I was kind of chuckling at that myself. If you 

know how to get questions answered in DOJ, I have got several letters that have gone unanswered for years, both when I was Chairman and as Ranking Member of this Committee. So you have a 

magic touch that nobody else seems to have, including the Attorney 

General. In fact, some of these even Senator Specter and I have 

asked him in the Oval Office of the President with the Attorney 

General standing there, and we still do not get the answers. But 

16

let me ask you one thing you could answer, and it has nothing to 

do with this. 

In January, we learned that the Justice Department issued subpoenas to three major Internet companies. They wanted information about what millions—I assume most of these millions Americans are law-abiding—were searching for on the Internet. Now we 

hear they have asked Microsoft, AOL, Google, and other Internet 

companies to retain records on their customers’ web-browsing activities. 

My question is this: What sorts of records does the Department 

ask these companies to retain? For how long? What were the companies’ responses? And should we be expecting a proposal from the 

Department for legislation in this area? 

Mr. FRIEDRICH. Senator, as I sit here, I don’t know the answer 

to that in terms of what was requested or the circumstances under 

which it was requested. I don’t know that I will be able to respond, 

but I am happy to look into it, and if we can give you a response, 

we will. 

Senator LEAHY. Well, will you do this: respond either way. If you 

can’t respond, let me know that, because then I will know whether 

to ask somebody else. 

Mr. FRIEDRICH. All right. 

Senator LEAHY. Thank you. And as I said, and following up on 

what Senator Specter said, I did not want you to be here as a 

punching bag. I just felt some of the people in your Department 

maybe set you up that way. 

Mr. FRIEDRICH. I will have a much happier walk back down 

Pennsylvania Avenue knowing that, Senator. 

[Laughter.] 

Senator LEAHY. It is a lovely day. I was out walking about 5:30 

this morning. I hope it is still just as nice. And that is a nice walk. 

We are fortunate, both you and I, to be able to work in a city this 

beautiful and this historical. Thank you, Mr. Chairman. 

Chairman SPECTER. Senator Kyl, would you care to question? 

Senator KYL. No. Thank you. 

Chairman SPECTER. Just another comment or two, and then we 

will move to the next panel. 

Mr. Friedrich, when you go back to get a response from the Department of Justice on the shield law, the balancing which we have 

discussed here, I wish you would take with you, although we have 

called this to the attention of the Attorney General and the administration at very high levels, the concerns that some of us have 

about Congressional oversight. And when we talk about shifting 

the decision from the executive branch to the judicial branch, I 

would suggest to you that that is really the tradition of the administration of justice. 

I know that the Department of Justice believes, as the inscription is over your building, the Department wins whenever justice 

is done. And I was a prosecutor, and a prosecutor has a quasi-judicial function to see that justice is done. But there is still a big advocate’s role—a big, big, advocate’s role in the prosecutor. So that 

when you have these questions, they are really traditionally decided in our system by the courts, not by the prosecutor, even 

though the prosecutor is quasi-judicial. And when you seek an anVerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC
17

swer on the legislation as to reporter’s shield, see if you can get one 

on the legislation which is pending to turn over to the Foreign Intelligence Surveillance Court the determination of constitutionality 

of the administration’s surveillance program. And I will not ask 

you whether you think—or maybe I will. Don’t you agree that it is 

the tradition in our system on these questions of disagreement between the executive and legislative branch, Article I and Article II 

officials, to have them decided by the courts. And isn’t the tradition, before there is an invasion of privacy or a search, search and 

seizure, that there is the imposition of the impartial magistrate between the citizen and the Government? 

Mr. FRIEDRICH. I certainly agree with you, Senator, that that is 

the procedure in search warrant cases and that, you know, the 

courts have spoken at some length about the different role of the 

executive and legislative branches and where the appropriate 

power lies between. I believe in the context of media shield legislation, certainly with respect to some of the proposals that have been 

put forth—and I do not claim to have familiarity with all of them. 

Some of them would seek to have the Government essentially get 

prior approval from the judicial branch before even issuing a subpoena, and that is what I was alluding to earlier. 

Chairman SPECTER. Well, I appreciate your answer, and we are 

seeking a way to accommodate the interests of the executive 

branch and maintaining the secrecy of the surveillance program. 

We have the Foreign Intelligence Surveillance Court which has an 

unblemished record for maintaining confidentiality and secrecy, 

and they have the expertise to make the decision. And we are trying to find some way to have an accommodation with the Department of Justice, and this Committee has a different function than 

the Intelligence Committee. Our job is to have Congressional oversight on constitutional issues. And we are right in the middle of a 

constitutional issue on the electronic surveillance program, and we 

are right in the middle of a constitutional issue on freedom of 

speech and reporter’s shield and the potential for prosecution under 

Sections 793 and 798. 

But we appreciate your categorical answer that the Department 

of Justice thinks it has the authority to prosecute criminally because I believe that is an invitation to the Congress to legislate on 

the subject, because we do decide where the criminal prosecutions 

will be brought. That is clearly our authority, and we are now on 

notice as to what we need to consider. 

Mr. FRIEDRICH. If I may, Senator? 

Chairman SPECTER. Sure. 

Mr. FRIEDRICH. Simply in terms of a categorical answer, again, 

I just want to clarify that I am speaking, as I believe the Attorney 

General was speaking, as to the potential reach of the law. I just 

want to again emphasize that, you know, the Attorney General has 

also said that our primary focus is on prosecuting the leakers as 

opposed to other options, and that our primary—that our much 

preferred path would be to attempt to work with reporters voluntarily to convince them not to publish classified information which 

could lead to the compromise of our most sensitive technologies, 

harm our young men and women who serve in the service of this 

country, and cause damage. 

18

Chairman SPECTER. Well, I appreciate your addendum, and I 

started off by saying that the national security interests are enormous—enormous—and they have to be balanced with the constitutional rights. But where you have a criminal statute where you can 

send people to jail and have a chilling effect on newspapers, it is 

really the Congressional role to define it and to establish standards. And I think clearly the ball is in our court. You have some 

balls in your court, and we have some in our court. 

I have just been notified that we have a vote on, so we will go 

vote, and we will be back promptly to take up the second panel. 

Thank you all. 

[Recess 10:28 a.m. to 10:54 a.m.] 

Chairman SPECTER. Would you gentlemen stand for the administration of the oath? Do each of you solemnly swear that the evidence you give before this Committee will be the truth, the whole 

truth, and nothing but the truth, so help you God? 

Mr. ANDERSON. I do. 

Mr. SMOLLA. I do. 

Mr. SCHOENFELD. I do. 

Mr. FELDSTEIN. I do. 

Chairman SPECTER. May the record who that each has answered 

in the affirmative. Thank you very much for coming in, gentlemen. 

We turn to our first witness, who is Mr. Kevin Anderson, a partner 

in the law firm of Fabian and Clendenin, Salt Lake City, Utah; 

bachelor’s degree from the University of Utah; law degree from 

Georgetown. He acted as an assistant to his journalist father, Mr. 

Jack Anderson, in the 1970s. Thank you very much for coming in 

today, Mr. Anderson, and we look forward to your testimony. 

STATEMENT OF KEVIN N. ANDERSON, FABIAN AND 

CLENDENIN, SALT LAKE CITY, UTAH 

Mr. ANDERSON. Thank you, Chairman Specter and members of 

the Committee. I appreciate this opportunity. I would like to acknowledge in the room with us today is my mother, and there are 

six of the nine members of my family also present. 

Chairman SPECTER. All present? Would they mind standing so 

we can recognize them and acknowledge them. 

Now, you say, Mr. Anderson, that your mother is right behind 

you, and the others who stood are your siblings? 

Mr. ANDERSON. Yes, that is correct. 

Chairman SPECTER. And six of the nine? 

Mr. ANDERSON. Yes, including me, are here. 

Chairman SPECTER. Well, that is a wonderful family. Congratulations to you, Mrs. Anderson, and all the Andersons. And reset the 

clock to 5 minutes. 

Mr. ANDERSON. Thank you, Senator. 

I will address the events surrounding the FBI’s request to access 

my father’s papers and my family’s view of how he would have reacted to the Government’s investigation of journalists who publish 

classified information. 

About 6 weeks after my father’s death, FBI Agent Leslie Martell 

called my mother to gain access to Dad’s papers. As the attorney 

in the family, I called her and was told that the FBI believed that 

there were classified documents among Dad’s papers that would 

19

help the Government in a criminal investigation. I was left with 

the impression that the FBI’s probe concerned terrorism. I was assured that no member of the family was the target of the investigation. 

As several members of this Committee know, Dad often cooperated with criminal investigations where it would not violate the 

confidentiality of his sources. I told Agent Martell that she could 

meet with Mom. 

Afterwards, Mom was excited to tell me that she thought Agent 

Martell might be related through her family roots in West Virginia, 

where Mom was born and raised. She found this more interesting 

than what the FBI wanted. All she remembered was that it involved something about Dad’s papers from the 1970s. 

My Mom cooperated with the investigation. She told the FBI 

agents where the boxes were located. She put them in touch with 

Dr. Feldstein and Dr. Chambless, both of whom had reviewed some 

of the boxes. Dr. Chambless, with the blessing of the family, even 

sent a 12-page inventory of 80 of the boxes he had reviewed to the 

FBI. 

Several weeks later, the FBI asked me to confirm that the family 

and not the Gelman Library at George Washington University 

owned the papers, and I confirmed that the family did own them. 

And because of the family’s concern, I told the agent at that time 

that the family would need more information about what documents the FBI wanted. 

Next I received a call from Dr. Feldstein at GW saying that the 

FBI claimed to have a consent that Mom had signed. I immediately 

called Agent Martell, upset that as the family attorney I had not 

been told about the consent and had not even seen it. To this day, 

I have not seen the consent. She was very apologetic and arranged 

a conference call. During that call, two FBI agents and one of the 

U.S. Attorneys General involved in the criminal case told me that 

the request for Dad’s papers was in connection with the AIPAC investigation. 

The FBI said that classified materials may have been passed between Dad’s office and the defendants in that case and perhaps 

even between Dad’s office and a member of the Foreign Intelligence 

Service in the early 1980s. They wanted to check for fingerprints 

on some of the documents. I told them that I thought that the presence of those types of documents in Dad’s papers was extremely 

unlikely. I also expressed my concern to them that the AIPAC prosecution could be viewed as a step toward prosecuting journalists. 

I felt Dad would have vigorously opposed such an effort. The FBI 

and Department of Justice representatives assured me that they 

were not after Dad’s sources, family members, or George Washington University for possession of classified documents. 

We also discussed hypothetically the scope of an FBI review of 

Dad’s papers, assuming that the family would decide to cooperate. 

The agents made it clear that they intended to review all of his papers, regardless of their relevance to the AIPAC case. In addition, 

they repeatedly stated that they would be ‘‘duty bound’’ to remove 

all possible classified documents, either permanently or redact 

them and return them. I felt this would destroy the political, historic, and cultural value of Dad’s papers. 

20

I made several suggestions to limit the scope. These were rejected, including my offer to personally review the papers to locate 

anything related to the AIPAC case. I was told that because I did 

not have a security clearance, I could not review my father’s papers. 

In early April, at a meeting with FBI’s former First Amendment 

attorney, Michael Sullivan, and an attorney for GW, I came to the 

conclusion that the AIPAC investigation was nothing but a fishing 

expedition, at best, and at worst, a pretext for the FBI to learn 

what it could not discover about Dad’s sources when he was alive. 

The family met and instructed Mr. Sullivan to formally reject the 

FBI’s request. A copy of that letter has been provided to the Committee. 

The family feels that the FBI’s review of Dad’s papers and removal of documents would be contrary to his wishes. He taught us 

that the press’ constitutional role was to keep an eye on those who 

govern us, not to be a bulldog or a lapdog, but a watchdog. He used 

to say that our Founding Fathers understood that Government by 

its nature tends to oppress. There is nothing in the Constitution 

about the freedom to practice law or to practice medicine, but there 

is something in the Constitution about the freedom of the press. 

Dad was fond of quoting Thomas Jefferson, who was vilified by the 

press more than any recent politician. ‘‘[W]ere it left to me to decide whether we should have a government without newspapers, or 

newspapers without government, I should not hesitate a moment 

to prefer the latter,’’ Jefferson wrote. 

For more than a generation, Dad and his mentor, Drew Pearson, 

were among the most significant journalistic checks in the Nation’s 

capital. At a time when Members of Congress and even the White 

House were afraid of J. Edgar Hoover, Dad had his staff openly 

rifle through Hoover’s trash to give the former FBI Director a taste 

of his own medicine. Dad often said that documents that came 

across his desk were classified as ‘‘national security’’ secrets, but he 

characterized them as really ‘‘political security’’ secrets. They 

showed the misdeeds and manipulations of Government employees 

who had abused the public trust and then tried to sweep the evidence under the secrecy stamp. Such information should not be 

hidden from the people. 

Ours is a Government of the people. Dad taught us that the people are the sovereigns. Those who work in Government are our 

servants. We, the people, have the right to know what our servants 

are doing when they act in our name. The secrecy stamp must not 

shield the actions of our officials from scrutiny. The press, as the 

watchdog, must be free to criticize and condemn, to expose and oppose the Government. 

Finally, concerning the reporter’s shield law being considered by 

this committee, I believe that Dad would have insisted that the 

First Amendment provides the best shield. I know that my father 

was concerned with protecting his sources. This concern is real. 

After the recent publicity, I have been contacted by several sources 

who still fear that their identification would result in political, financial, and even physical harm. The FBI’s efforts have underscored the need for protection of journalists, their families, and in 

21

this case—excuse me, journalists, their sources, and in this case, 

even their families. 

Again, thank you for this opportunity. 

[The prepared statement of Mr. Anderson appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Mr. Anderson. We 

turn now to Dean Rodney Smolla, dean of the University of Richmond School of Law; bachelor’s degree from Yale, a law degree 

from Duke; has taught at many law schools—College of William 

and Mary, Duke, University of Denver, University of Arkansas, 

University of Illinois, at DePaul College of Law. Quite a record, 

and now he is the dean at the University of Richmond School of 

Law. Thank you very much for coming in, and the floor is yours, 

Dean Smolla. 

STATEMENT OF RODNEY A. SMOLLA, DEAN, UNIVERSITY OF 

RICHMOND SCHOOL OF LAW, RICHMOND, VIRGINIA 

Mr. SMOLLA. Thank you, Mr. Chairman. I am going to go right 

to the heart of the constitutional and public policy issues that you 

and others have been addressing throughout the hearing. As you 

have recognized and your fellow Senators have recognized, the Constitution and the First Amendment specifically absolutely have to 

be a vital part of this discussion. We start with the First Amendment baseline, which is a long series of cases, a venerable series 

of cases, in which the Supreme Court of the United States has 

made it clear that all citizens, including reporters, have a presumptive First Amendment right to publish truthful information that is 

lawfully obtained. That is sometimes described as the Daily Mail 

line of cases. 

It is important to remember that in almost every one of those 

cases, somebody did something wrong to give the material to the 

reporter—there was a leak, the material was classified, there was 

a restraining order on the material. Nevertheless, the reporter obtained the material and the Supreme Court sustained the First 

Amendment right of that journalist to publish that material. 

Now, that line of cases puts great pressure on that phrase ‘‘lawfully obtained,’’ and to this day, the Supreme Court has never 

given that phrase complete clarity. A narrow concept of it could 

mean that the reporter does not in some affirmative way engage 

in lawbreaking in obtaining the material, the reporter does not 

hack into the computer file or break into somebody’s office. But it 

could also have a broader meaning. It could conceivably mean that 

if the reporter passively receives information that the reporter 

knows someone else is breaking the law in handing over to that reporter, that the reporter is in some sense tainted by the transaction 

and that the material is not lawfully obtained. 

It is clear that the Supreme Court itself does not believe this is 

a First Amendment question that is completely settled. For example, in one of the famous cases in this line, Florida Star v. B.J.F., 

the Court said—I will quote it directly: ‘‘The Daily Mail principle 

does not settle the issue whether, in cases where information has 

been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the 

ensuing publication as well.’’ 

22

In one of the few cases in which the Court has gotten deeply into 

this, a recent case, Bartnicki v. Vopper, the Supreme Court dealt 

with illegally intercepted cell phone conversations. None of us 

wants to hear our cell phone conversations broadcast on the radio 

or printed in a newspaper. The Supreme Court in that case held 

that the First Amendment protected the journalists who published 

and broadcast that information, even though plainly someone broke 

the law in intercepting it. 

Now, Bartnicki is a somewhat confusing and ambivalent ruling 

because two Justices who were necessarily the majority in that 

case, Justice Breyer and Justice O’Connor, took a sort of intermediate position. Justice Breyer, who wrote that concurring opinion, said, ‘‘In this case, I believe the First Amendment protects 

what the reporters did, but it is important to me that what was 

happening is that the material that was being broadcast revealed 

wrongdoing, potential violence, potential lawbreakers by the speakers. And in that posture,’’ he said, ‘‘I think the First Amendment 

trumps,’’ but he left open the possibility that this was not an absolute principle and that you could have a narrowly crafted law that 

would satisfy the First Amendment standards. 

Many of the other cases that are out there, including the Pentagon Papers case, which you have alluded to, Senator, do not give 

us a clear answer. We know in the Pentagon Papers case that the 

Supreme Court said in the context of national security that even 

the doctrine of prior restraint was not absolute, that there could 

come a situation where you would allow a prior restraint under the 

First Amendment. We know the Court left unresolved one of the 

questions you were questioning the Justice Department representative on, which is whether the Espionage Acts do or don’t allow for 

prosecution. 

But one critical thing that is central to Pentagon Papers, that is 

part of the holding, is that it was clearly critical to a majority of 

the Court that the material at issue did not compromise any ongoing live operations with regard to the prosecution of the Vietnam 

War. It was a matter of great public interest. It unveiled wrongdoing in some respects. But it was history, and it had passed into 

the public domain, it seemed the Court was saying, which shows 

us that it must be the rule that just because something is classified 

does not mean that there is carte blanche for the Government to 

go after a journalist who traffics in it. 

It would overstate matters to say that the First Amendment absolutely bars making the receipt of information or the downstream 

publishing of the information unconstitutional. We know that cannot be the case. The Court has never said that in the Daily Mail 

line of cases, and we have one prominent example where the Court 

has held to the contrary, in the obscenity area, where the Supreme 

Court held originally in Stanley v. Georgia that you could not make 

the mere possession of obscene material—which was illegal. You 

could not make the mere possession of the material a crime because that was tantamount to making a thought crime. The Court 

said that rule did not apply later in the context of child pornography, where you could make the mere possession of the material 

a form of contraband. So we do know that there are times when 

23

we have interests of sufficiently high order to justify a narrowly 

drawn statute. 

The very last point I will make, Senator, is that although I think 

conceivably a narrowly drawn law could be crafted by Congress 

that would protect national security secrets with sufficient safeguards and tailoring and so on to not violate existing First Amendment doctrine, that does not mean it is a good idea. It does not 

mean it is wise public policy. And it certainly does not mean that 

we ought to interpret existing statutes as saying that, although 

some of the sections of existing law by their bland language would 

appear to encompass the mere possession or publishing of classified 

information. 

As has already been brought out powerfully in this hearing, that 

is not our tradition. There is very serious doubt that this Congress 

intended for that to be how those laws would be used, and we have 

not in the history of this Republic used them that way. And in light 

of that cultural experience, that societal understanding, and the serious First Amendment tensions that are created if we were to go 

there, the better interpretation of existing law is that it is too dangerous to interpret those statutes as if they empower the Government to prosecute journalists. And it would be bad public policy, in 

my view, Senator, if Congress were to attempt to clarify the law 

in a way that would empower the Government to go after journalists. Thank you. 

[The prepared statement of Mr. Smolla appears as a submission 

for the record.] 

Chairman SPECTER. We now turn to Dr. Gabriel Schoenfeld, 

Commentary Magazine senior editor, who has written on a wide 

variety of subjects—the Vietnam War, terrorism, nuclear proliferation, the cold war, anti-Semitism; published in the New York 

Times, the Wall Street Journal, the Washington Post, New Republic; appeared on many TV shows; a Ph.D. from Harvard’s governmental department in 1989. 

Thank you very much for joining us, Dr. Schoenfeld, and we look 

forward to your testimony. 

STATMENT OF GABRIEL SCHOENFELD, SENIOR EDITOR, 

COMMENTARY, NEW YORK, NEW YORK 

Mr. SCHOENFELD. Thank you very much, Mr. Chairman. It is an 

honor to be invited here to testify today. 

As a journalist, I know firsthand the vital role played by a free 

press in our great country. Just this past week, two members of the 

media were killed and a third was critically injured while reporting 

on the war in Iraq. One cannot be indifferent to the risks that journalists are taking on a daily basis to bring us the information on 

which we depend to keep our society free and our debate open and 

well informed. 

But the tragedy that befell Kimberly Dozier and her crew also 

served to underscore the fact that our country is now at war. Thousands of our young men and women are in harm’s way in distant 

locations around the world. And on September 11, 2001, as a result 

of a massive intelligence failure, we found that our own homeland 

was also in harm’s way. Three thousand Americans paid for that 

intelligence failure with their lives. 

24

Obviously, many different factors contributed to that intelligence 

lapse. One of them is the subject of today’s hearing, namely, leaks 

of classified information. The Jack Anderson archive affair is part 

of an issue with broad and urgent ramifications. 

The 9/11 Commission report stated that in 1998 a leak to the 

press led al Qaeda’s senior leadership to stop using a particular 

communications channel, which made it much more difficult for our 

National Security Agency to intercept Osama bin Laden’s conversations. Our Government’s ability to gain insight into the plans of a 

deadly adversary were compromised by the actions of a leaker or 

leakers inside of Government and by journalists willing to publish 

what they had learned from those leakers, no matter what the cost 

to our National security. 

The damage caused by that leak was not widely recognized at 

the time, and no action was taken against the leakers or the newspaper which first published the secret information. But the episode 

highlights the crucial importance of communications intelligence in 

the war on terrorism and the special vulnerability of this form of 

intelligence to disclosure. 

It was precisely because of that vulnerability that in 1950 Congress added a very clear provision to the U.S. Criminal Code dealing specifically with communications intelligence. What is now 

known as Section 798 of Title 18 made it a crime to publish classified information pertaining to communications intelligence. I 

should add that that Act was passed in the aftermath of a press 

leak during World War II, in the Battle of Midway, when the Chicago Tribune had disclosed that our intelligence agencies had succeeded in breaking Japanese codes, which was a very serious leak 

that threatened the lives of thousands of American soldiers and 

threatened to prolong the war. 

Now, Section 798 is free from all the ambiguities and constitutional problems that beset the 1917 Espionage Act. It was passed 

virtually without debate by Congress and won the approval at the 

time it was passed of, among other organizations, the American Society of Newspaper Editors. 

In the years since its passage, Section 798 has never been employed for the prosecution of a journalist. It is a law that was designed for special circumstances that are very dangerous but also 

very rare. Unfortunately, those special and rare circumstances appear to be upon us today. 

On September 11th, our country suffered a second and more terrible Pearl Harbor. Overnight, we were thrust into a new kind of 

war, a war in which intelligence is the most important front. It is 

also a war in which, if our intelligence fails us, we as an open society are uniquely vulnerable. If we are to defend ourselves successfully in this war and not fall victim to a third Pearl Harbor, perhaps a nuclear Pearl Harbor, it is imperative that our Government 

and our intelligence agencies preserve the ability to conduct 

counterterrorist operations in secret. 

I do not know what classified documents, if any, might be contained in Jack Anderson’s archive. But from the press reports I 

have seen and from the testimony here today, they do not appear 

to be of recent vintage, and some of them might go back as far as 

the Korean War. Now, surely, if the FBI can demonstrate that 

25

there are documents in that archive the disclosure of which will 

damage national security or bear on criminal behavior, the FBI and 

the Justice Department have the statutory right to obtain a warrant to search and seize those documents. It probably would have 

enjoyed that right when Anderson was alive, and it certainly has 

them now that he is dead. Whether it should exercise that right 

today in the middle of the war on terrorism is another matter entirely. Unless facts come to light that alter our understanding of 

what is in that archive, the entire episode appears to be a 

misallocation of investigative resources. There are other leaks that 

have been far more damaging which the FBI is not pursuing with 

any seriousness at all, as best we can tell. 

Beginning last December 16th, the New York Times published a 

series of articles reporting that shortly after September 11, 2001, 

President Bush had authorized the National Security Agency to 

intercept electronic communications between al Qaeda operatives 

and individuals inside the United States and providing details 

about how those interceptions were being conducted. 

Now, the 9/11 Commission had identified the gap between our 

domestic and foreign intelligence-gathering capabilities as one of 

the primary weaknesses in protecting our country against terrorism. The NSA terrorist surveillance program aimed to cover that 

gap. The program, by the Times’ own account of it, was one of our 

country’s most closely guarded secrets in the war on terrorism. 

I am not privy to the workings of the program, but a broad range 

of Government officials have said that the program was vital to our 

security and that the New York Times disclosure inflicted critical 

damage on a crucial counterterrorism initiative. 

Compounding the direct damage caused by the compromise of the 

NSA program is harm of a more general sort. In waging the war 

on terrorism, the U.S. depends heavily on cooperation with the intelligence agencies of allied countries. When our own intelligence 

services, including the NSA, the most secretive branch of all, demonstrate that they are unable to keep shared information under 

wraps, international cooperation dries up. 

According to Porter Goss, his intelligence agency counterparts in 

other countries informed him that our Government’s inability to 

keep secrets had led some of them to reconsider their participation 

in some of our country’s most important counterterrorism activities. 

If Americans are still wondering why our intelligence has been 

as defective as it has been, why it has been leading us from disaster to disaster, one of the reasons is unquestionably the hemorrhaging of classified information into the press. 

During the run-up to the Gulf War, the United States was urgently attempting to assess the state of play of Saddam Hussein’s 

program to acquire weapons of mass destruction. One of the key 

sources of information suggesting an ambitious WMD program was 

under way was an Iraqi defector known by the code name of 

Curveball, who was talking to German intelligence. The U.S. remained in the dark about Curveball’s true identity, yet if we had 

known who he was, we would have also known that he was a serial 

fabricator. 

But the reason why German intelligence would not tell us who 

Curveball was, as we learned from the Silberman-Robb WMD ComVerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC
26

mission report, that they refused ‘‘to share crucial information with 

the United States because of fear of leaks.’’ In other words, some 

of the blame for our mistaken intelligence about Iraq’s WMD program rests with the leakers and with those in the media who rush 

to publish the leaks. 

Now, President Bush has called the disclosure of the NSA program, the terrorist surveillance program, by the Times a ‘‘shameful 

act.’’ I have argued in the pages of Commentary that the decision 

to publish that story was also a crime, a violation of Section 798. 

Now, today Congress sets the laws by which we live in our democracy and oversees the way that they are carried out. If Congress, representing the American people, comes to believe that the 

executive branch is creating too many secrets or classifying things 

that should not be classified, it has ample powers to set things 

right by funding faster and better declassification and/or changing 

the declassification rules. 

But if, by contrast, a newspaper like the Times, a private institution, representing no one but itself, acts recklessly by publishing 

vital Government secrets in the middle of a perilous war, it should 

be prepared to accept the consequences as they have been set in 

law by the American people and its elected representatives. The 

First Amendment is not a suicide pact. 

Thank you very much for your attention, Mr. Chairman. 

[The prepared statement of Mr. Schoenfeld appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Dr. Schoenfeld. 

Our final witness on this panel is Mr. Mark Feldstein, Director 

of Journalism at George Washington University, Associate Professor of Media and Public Affairs at George Washington University; bachelor’s degree from Harvard, a Ph.D. from University of 

North Carolina. In the 1970s he was an intern for columnist Jack 

Anderson. For nearly 20 years, he has been an on-air correspondent for virtually every news station—CNN, ABC, NBC—

and has a record as an investigative reporter, as his resume says, 

beaten up in the United States, detained and escorted by Government authorities in Egypt, and kicked out of Haiti. 

Quite a record, Mr. Feldstein. 

His book, ‘‘Poisoning the Press: Richard Nixon, Jack Anderson, 

and the Rise of Washington’s Scandal Culture,’’ will be published 

next year. 

Thank you for joining us today, Mr. Feldstein, and the floor is 

yours. 

STATEMENT OF MARK FELDSTEIN, DIRECTOR OF JOURNALISM PROGRAM, AND ASSOCIATE PROFESSOR OF MEDIA 

AND PUBLIC AFFAIRS, SCHOOL OF MEDIA AND PUBLIC AFFAIRS, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, 

D.C. 

Mr. FELDSTEIN. Thank you, Senator. Let me just summarize my 

testimony, if I might, and ask that my full statement, with some 

news articles and editorials about the case, be entered into the 

record. 

Chairman SPECTER. Without objection, they will all be made a 

part of the record. 

27

Mr. FELDSTEIN. Thank you. 

On March 3rd, two FBI agents showed up at my home. They 

flashed their badges and requested 25-year-old documents I had 

been going through for the book I am writing about Jack Anderson. 

The agents told me they were investigating violations of the Espionage Act going back to the early 1980s, even though they admitted 

the statute of limitations had expired. It seems the Justice Department wants to prosecute people who might have leaked secrets to 

a reporter decades ago, a reporter who is now dead. The agents 

tried to get me to say we have classified documents in our archives, 

even though I told them I do not know of any. They seemed to view 

reporters’ notes as the first stop in their probe rather than the last 

step after all others failed—the standard they are supposed to use 

under Justice Department guidelines. 

Now, of course, the FBI is filled with thousands of brave men 

and women who do their jobs superbly and risk their lives for their 

country. But this case is troubling because whistleblowing sources, 

the kind Senator Grassley and other members of this Committee 

have championed, may be scared off if the Government starts rooting through reporters’ notes, even past the grave. 

Last month, FBI Director Mueller promised this Committee he 

would find out what happened here, and I think the FBI still owes 

the Committee an answer. Perhaps the Justice Department’s Inspector General should investigate. 

Unfortunately, this seems to be part of a larger effort to use national security to crack down on the public’s right to know. We are 

even hearing proposals to prosecute journalists under the Espionage Act, a law passed during the hysteria of World War I and 

strengthened when Joe McCarthy began his witch hunt. Prosecuting the press for espionage reeks of McCarthyite madness, the 

kind of tactics used in dictatorships, not democracies. 

Espionage? Reporters are not spies. They are patriotic. Every 

year, dozens of them give their lives trying to dig out the truth for 

the people. They are not perfect. Journalists make mistakes. 

They can be arrogant. They give too much attention to trivia and 

sensation. But history shows that genuine harm to national security caused by reporters has been minuscule to nonexistent. Far 

more damage to national security has been caused by Government 

secrecy and deceit than by media disclosures of classified information. If anything, the problem is not that the press is too aggressive 

in national security reporting. It is that it is too timid. 

Now, administrations often exaggerate the damage from reporting, invoking national security, when the real concern is political 

embarrassment. The fact is that leaks increase when Government 

abuses increase because whistleblowers turn to the press to get the 

truth out. This is healthy, a self-correcting mechanism in a democracy, and it is as old as the Republic itself. 

In 1796, a newspaper published verbatim excerpts of what 

George Washington told his Cabinet about secret negotiations with 

Britain. It created an uproar in international relations. Who leaked 

this National security secret? Thomas Jefferson, the Secretary of 

State then, was the No. 1 suspect. 

28

If you start prosecuting reporters for revealing secrets, journalists will stop telling the public about important national security 

misconduct. Either that, or the jails will fill up with reporters. 

Neither option is good. Merely threatening to prosecute the 

media by twisting the Espionage Act or some other law sends a 

chilling message. In the words of one journalist, the Government 

has ‘‘already won...a victory that will bear fruit every day, whenever any reporter holds back for fear of getting into trouble, whenever a source fears to come forward lest he be exposed, whenever 

an editor ‘goes easy’ for fear of government retaliation...whenever 

a citizen anywhere can be influenced to think of reporters as 

lawbreakers, the kind of people who have to be arrested.’’ 

The journalist who said those words was Jack Anderson, writing 

about the Nixon administration abuses during Watergate. Unfortunately, his words appear to be equally relevant today. 

Thank you. 

[The prepared statement of Mr. Feldstein appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Mr. Feldstein. 

We received a letter yesterday from Mr. Max Frankel, who submitted an affidavit 35 years ago in the Pentagon Papers case, and 

without objection, we will make part of the record Mr. Frankel’s affidavit, and also his letter to the Committee dated yesterday, June 

5th. And I will read one paragraph from the letter from Mr. 

Frankel. 

‘‘A review of the affidavit shows that, while all the names have 

changed, the way Washington works has not. Neither have the 

principles that should govern the relationship between Government 

and the press. Leaks of secrets and of classified information have 

been and continue to be routine. For a wide variety of reasons, they 

are essential to what I call the ‘cooperative, competitive, antagonistic, and arcane relationship’ between Washington reporters and 

American officials. The press plays a vital role in educating the 

public through the use of so-called secret information, much of it 

intentionally disclosed by honorable Government servants. They 

may be floating trial balloons, sending messages to foreign governments, waging internecine battles against other governmental departments, illuminating or attacking governmental policies. Their 

motives are as numerous as their disclosures.’’ 

Mr. Anderson, do you know if Federal authorities ever made a 

request to your father for any information or documents during his 

lifetime? 

Mr. ANDERSON. During the span of his lifetime, I am sure that 

there were some requests. I was asked by someone in the media 

who said that an FBI representative had told them that about a 

year before he died, they had made a request. I don’t know whether 

that is true, but in following up on that—my father was pretty 

much bedridden during that year, 24-hour-a-day care. I checked 

with the nurses and my sister who was tending him and my Mom, 

and none of them was familiar with any request. 

Chairman SPECTER. So you know of no request? 

Mr. ANDERSON. That is correct. I do not. 

Chairman SPECTER. And, similarly, you know of no disclosure by 

your father of any of his documents. 

29

Mr. ANDERSON. That is correct. He would not have and did not, 

to my knowledge. 

Chairman SPECTER. And you testified that the FBI told you you 

could not review your father’s papers? 

Mr. ANDERSON. That is what they said on several occasions, actually. 

Chairman SPECTER. Has the FBI gone to any compulsory process, 

subpoena, to obtain your father’s papers? 

Mr. ANDERSON. Not at this point. I should add that they have, 

you know, repeatedly asked various people questions and have the 

necessary information to do that. 

Chairman SPECTER. Have you—and you do not have to answer 

this question. You do not have to answer any of these questions. 

You are not under subpoena. And if you were under subpoena, you 

would not necessarily have to answer the questions either if you 

claimed the privilege. But I will ask you: Have you reviewed any 

of your father’s papers in the face of the FBI statement to you that 

you are not permitted to, authorized to? 

Mr. ANDERSON. I have not in the recent past. I have not seen 

really any of the papers since they were—some of them were boxed 

up 20 years ago. 

Chairman SPECTER. Aren’t you interested in what they say? 

Mr. ANDERSON. A little bit, but to be frank with you, I have been 

too busy to get out there and do that. I would completely disregard 

the FBI’s direction to me and review them at will, though. 

Chairman SPECTER. And how do you describe the volume? In 

boxes, you said? 

Mr. ANDERSON. There are 187 boxes. 

Chairman SPECTER. How big are the boxes? 

Mr. ANDERSON. They are what I call banker’s boxes, you know, 

just a typical document storage box. I couldn’t tell you how many 

thousands of papers. And then, in addition, there are—

Chairman SPECTER. A banker’s box, about 2 feet, 21⁄2 feet, by 

about a foot and a half? 

Mr. ANDERSON. Yes, that would be correct. And then there are 

20 file drawers of small 3–x–5 cards that my Dad used to keep to 

index the columns that he wrote. 

Chairman SPECTER. Do you have any idea why the FBI, after 

making a request, has not pursued compulsory process, a subpoena? 

Mr. ANDERSON. I understand that they would have to go to the 

Department of Justice, and my guess is that the Department of 

Justice perhaps has a different view of the importance of the documents that might be in there. 

Chairman SPECTER. Now, you say that your father and Drew 

Pearson went through Director J. Edgar Hoover’s trash? 

Mr. ANDERSON. Yes, that is correct. He did a series of articles 

about what they found in there, and, in fact, I think an ABC News 

crew videotaped one of Dad’s reporters going through the trash. 

Chairman SPECTER. Do you know if—well, I will ask you the 

question. I think the answer is obvious. Do you know whether any 

of these many boxes contain information about Director Hoover’s 

trash? 

30

Mr. ANDERSON. Well, I suspect they do because they have the information—they have copies of the columns that he wrote and some 

of Dad’s notes related to that. 

Chairman SPECTER. Mr. Feldstein, Professor Feldstein, what, 

again, did the FBI ask you for with respect to Mr. Anderson’s files, 

Mr. Jack Anderson’s files? 

Mr. FELDSTEIN. Well, they basically wanted to go through all of 

them. 

Chairman SPECTER. And what did you have? 

Mr. FELDSTEIN. Well, my university has nearly 200 boxes that 

the Anderson family donated to the collection, to our collection. 

Chairman SPECTER. Are those papers of the university available 

for public inspection? 

Mr. FELDSTEIN. No, sir, not yet. We, as all archives do, first get 

them and then try to raise the money, because it is expensive to 

catalogue them—it usually takes months or years—segregate out 

anything the family or the donor wanted segregated, love letters, 

source notes, what have you, and then we make it—put it on display for the public. 

Chairman SPECTER. And is it the intention of your university 1 

day to make those records available to the public after being 

screened as you describe? 

Mr. FELDSTEIN. Yes, sir. 

Chairman SPECTER. What do you think would be the consequence on other reporters if you were to give the FBI access to 

Mr. Jack Anderson’s files that you have in possession of your university? Mr. Feldstein. Well, I think it would be troubling for both 

journalists and academics. For journalists, the concern would be 

that their source notes, confidential sources, would be revealed to 

law enforcement authorities and that that would produce a chilling 

effect, making other whistleblowers reluctant to come forward out 

of fear that their identities would later become known. For academics, historians are always very concerned about trying to keep 

historical archives in order and not have them rifled through, because often the order matters, and also may discourage people from 

donating their papers in the future, not just at our university but 

everywhere, if—

Chairman SPECTER. You think it would have a chilling effect? 

Mr. FELDSTEIN. Yes, sir. 

Chairman SPECTER. A serious chilling effect? Mr. Feldstein. Well, 

how serious depends on, I suppose, how bad the rifling is that 

takes place and how much is confiscated. One of the problems is 

the FBI agents did make clear that they would be duty bound to 

pull out stuff that they felt should not be in there. 

Chairman SPECTER. You and your university are preserving 

these papers so that if the FBI should ever assert a compulsory 

process and have that upheld by the courts, they would be available to the FBI? 

Mr. FELDSTEIN. Well, I can’t speak for the university or for the 

Anderson family, but, yes, we are preserving it and, you know, we 

certainly believe in abiding by the law. And we are all good citizens, too, and we don’t want anything to jeopardize national security. You know, my own concern here is, frankly, I am a little skepVerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC
31

tical that anything that old and that long ago really is about national security. 

Chairman SPECTER. Mr. Anderson, a similar question to you. If 

the FBI ultimately prevails with a subpoena compulsory process, 

will the records be available for them to see if they are upheld in 

court? 

Mr. ANDERSON. Not at this point in time. The family has met 

and decided that we would not abide by a subpoena if one were 

issued by the FBI, and we would give that instruction to the 

George Washington University. 

Chairman SPECTER. Well, if the subpoena was upheld by the 

highest court in the country, would you risk a contempt citation 

rather than make the records available? 

Mr. ANDERSON. I would, and I have spoken with my mother, and 

she would as well. 

Chairman SPECTER. Well, we will not ask you for a final judgment on that today. We are far from that. But it is not an irrelevant question. 

Well, Dr. Schoenfeld and Professor Smolla, you pose about as 

sharp a conflict as you can find on this issue. Dr. Schoenfeld wants 

to prosecute the New York Times and Mr. Risen, and Professor 

Smolla does not even want us to examine the question as to what 

standards would be appropriate for prosecution under 798, because 

that would be an invitation. 

You have it on the books. You have heard, Dean Smolla, the testimony of a representative of the Department of Justice that the 

Department concludes as a legal matter that the Department has 

the authority to prosecute. Do you think that there are no circumstances, there is no conceivable circumstance under which a 

prosecution by the Federal Government of a newspaper or a newspaper reporter would be justified? 

Mr. SMOLLA. Well, Senator, let me divide it into the statutory 

question and the First Amendment question. I think it is very implausible that Section 798 was thought of by Congress when it 

passed that law in 1950 as overturning decades of cultural understanding that we had before this law was passed and that we have 

observed since. And it is implausible that Congress had in mind 

upsetting the traditional First Amendment balance that has existed. 

You would have to believe that Members of Congress imagined 

that there could be, for example, an illegal or unconstitutional communications interception program. It is conceivable that the executive branch could illegally be intercepting people’s communications 

and that Congress meant to say that all the executive branch needs 

to do is say the existence of the program is classified, the very fact 

we are doing it is a secret; and if that is revealed and the reporter 

finds out about it, the reporter can be criminally prosecuted for exposing that. 

That is a very improbable understanding of what Congress 

thought it was doing when it passed this law, and—

Chairman SPECTER. But is Dr. Schoenfeld wrong that the statute 

was passed as a reaction to the disclosure by a newspaper that the 

Japanese code had been broken? 

32

Mr. SMOLLA. Well, you know, that episode took place 8 years before. As Dr. Schoenfeld has conceded, there is very little legislative 

history surrounding the passage of the Act. And there may be a 

qualitative difference between the kind of communication that reveals, in fact, how we are intercepting material, that reveals that 

a code has been broken, that kind of hard national security data 

where you can instantly see this would damage the national security of the United States if this is released, and the kind of leaks 

that are now being talked about, which are leaks about massive 

programs that don’t reveal any technical secrets—the New York 

Times didn’t explain exactly how these things were intercepted—

don’t even reveal the content of it. All they do is tell you that it 

is done without a warrant. 

Chairman SPECTER. Well, yes, but are you saying that there is 

no conceivable circumstance which would justify prosecuting a 

newspaper or a reporter? 

Mr. SMOLLA. No, I am not, and I am conceding that the First 

Amendment standard itself contemplates that there could be national security interests of the highest order and that a narrowly 

tailored statute in which the Congressional intent was clear and in 

which defense safeguards are built in, safeguards that require that 

there be proof that some ongoing or live operation—

Chairman SPECTER. Have you had a chance to review the LugarSpecter bill? 

Mr. SMOLLA. I think it is generally going in the right direction, 

Senator. We certainly should have a shield law. 

Chairman SPECTER. Never mind going in the right direction. 

[Laughter.] 

Chairman SPECTER. Would you support it? Mr. Smolla. I think 

that the critical thing would be—and you alluded to this, Mr. 

Chairman—how broad or how narrow the national security exception is. But I absolutely support the idea that that should be the 

kind of thing placed in the hands of the neutral magistrate. 

Chairman SPECTER. Well, since you haven’t said yes, would you 

give us suggestions as to how to—

Mr. SMOLLA. I would be happy to do that. I would be happy to 

do that, Senator, but I think—

Chairman SPECTER. How to perfect it so that you would support 

it? 

Mr. SMOLLA. I would be happy to be invited, in fact, to do that, 

Senator. 

Chairman SPECTER. Dr. Schoenfeld, what is your thinking or the 

basis for your conclusion that Congressional intent on 798 was to 

cover a situation like the publication by the New York Times and 

Mr. Risen of the surveillance program? 

Mr. SCHOENFELD. I can’t imagine a set of circumstances that 

more closely fit the intention of the Congress that passed that Act. 

Just looking at the plain language of the law, it is unambiguous. 

The provision says, ‘‘Disclosure of classified information. (a) Whoever knowingly and willfully communicates, furnishes, transmits, 

or otherwise makes available to any unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interests 

of the United States or for the benefit of any foreign government 

33

to the detriment of the United States any classified information (3) 

concerning the communication...activities of the United States...’’ 

Chairman SPECTER. You testified that it was your thinking that 

the disclosure of the breaking of the Japanese code, which put 

many American lives at issue, at stake, was at least in part responsible for the statute? 

Mr. SCHOENFELD. Well, there was a joint Committee right after 

the war, in 1945, I believe, that made a series of recommendations 

to the Congress about tightening security in the interest of avoiding another Pearl Harbor, and this joint Committee had made reference to the 1943 Midway Chicago Tribune case. So when Congress revisited these laws in 1950, it was taking cognizance of the 

joint committee’s recommendations, and it explicitly rejected the 

joint committee’s recommendation that there be very blanket secrecy rules put in effect, and it carved out this one very narrow 

area of communications intelligence for special protection. It didn’t 

want to impose a blanket secrecy rule, and the newspaper industry 

at the time—the New York Times, which was an active member in 

the American Society of Newspaper Editors—endorsed the passage 

of this law. 

Chairman SPECTER. Well, I know that the law was endorsed by 

the American Society of Newspaper Editors, but that could cut both 

ways. It could cut that they endorsed it because they thought they 

were not being prosecuted. Why do you think that their endorsement—

Mr. SCHOENFELD. I think the journalists—

Chairman SPECTER. Excuse me. 

Mr. SCHOENFELD. Sorry. 

Chairman SPECTER. Let me finish the question. 

Mr. SCHOENFELD. I am sorry. 

Chairman SPECTER. What was the basis for your thinking that 

their endorsement was a recognition that there were some circumstances where it would be appropriate to prosecute a newspaper and a reporter? 

Mr. SCHOENFELD. I can only conjecture, Senator, but I would 

think that in the climate of those years, journalists would have 

thought it inconceivable, except for a few perhaps on the fringes, 

that there would be journalists who would be eager to publish vital 

Government secrets in this area, especially in light of the experience in World War II and then in the early days of the cold war 

facing a nuclear-armed U.S.S.R. 

Chairman SPECTER. Dr. Schoenfeld, what weight, if any, would 

you give to the fact that there has never been a prosecution under 

798? 

Mr. SCHOENFELD. I think that should be given some weight. 

Prosecutions of journalists in our country have been unprecedented, and I think that is a good thing, obviously. And—

Chairman SPECTER. Prosecutions of journalists unprecedented? 

Mr. SCHOENFELD. Well, not unprecedented, but very rare. 

Chairman SPECTER. Don’t tell Judith Miller that. 

Mr. SCHOENFELD. They are rare. Well, she wasn’t prosecuted. 

She was held in contempt. But they have been historically very 

rare, and that is as it should be. That is right and proper. However, I think the New York Times crossed a line here. I would disVerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC
34

tinguish it also from other recent leak cases. For example, Dana 

Priest, a Washington Post reporter, who wrote about clandestine 

prisons in Eastern Europe, is probably not an easy target for prosecution. It seems to me that Section 798 is not implicated, and you 

are already into the very murky territory of the Espionage Act, and 

there I think the courts might as well find constitutional objection 

to prosecution for that kind of leak. 

Chairman SPECTER. Coming back to the Judith Miller case, 

which started off as a national security case on the identity of the 

CIA agent, and then shifted to an inquiry into whether there had 

been obstruction of justice or perjury, do you think that there is an 

adequate basis for jailing a reporter when you do not have a national security interest in issue? 

Mr. SCHOENFELD. Well, since Branzburg, the courts have ruled 

that journalists are obliged to testify about what they know regarding criminal matters, so clearly there is no protection now for journalists. And I think that the—I read the testimony of the Justice 

Department officials before your Committee about the shield law, 

and I found it very compelling. I oppose the legislation—that I have 

seen, in any case—that was commented on by the Justice Department. 

Chairman SPECTER. Have you had a chance to review the LugarSpecter bill? 

Mr. SCHOENFELD. I am not sure that I have. I reviewed what was 

testified to by a Justice Department official by the name of Chuck 

Rosenberg, I believe, and not further. 

Chairman SPECTER. Dr. Schoenfeld, you testified that if the Congress thinks the administration is overclassifying, Congress can 

change that. What do you do in a situation where the Congress 

does not know what is being classified? You have the electronic 

surveillance matter, which you testified about, disclosed in the New 

York Times on December 16th. The administration had only informed the so-called Gang of Eight—the leaders of both Houses and 

the Chairman and Ranking Member of both Houses—which had 

been a tradition. It did not comply with the law. As you know, the 

National Security Act of 1947 requires that the Intelligence Committees of both Houses be informed. 

In the 104th Congress, I was a member of the Gang of Eight as 

Chairman of the Intelligence Committee. I do not think they told 

us much. They did not tell the Gang of Eight much from what I 

saw. But, obviously, informing the Gang of Eight was not in compliance with the law. Then after the New York Times disclosure 

and certain activities undertaken by this Committee, the administration was willing to tell a Subcommittee of the Senate Intelligence Committee, 7 of the 15 members. And then the House of 

Representatives initially declined to have a Subcommittee told on 

the ground that that did not comply with the statute. But then 

they finally accepted a Subcommittee of 11. 

And then on the eve of the confirmation hearings of General 

Hayden, the administration decided to comply with the law. So now 

you have the two Intelligence Committees informed. But the Judiciary Committee, which has the oversight responsibility on constitutionality, is not informed, nor is the Chairman and the RankVerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC
35

ing Member, which is what the administration sometimes does 

when it does not want to inform a full committee. 

Now, so you have 15 of 100 Senators informed, and you have a 

small percentage of the House informed, the Intelligence Committees. So how can Congress act to change the classification when 

Congress cannot find out what is being classified? 

Mr. SCHOENFELD. Well, it appears to me, Senator, that there is 

a genuine clash here between the branches; however, within Congress itself, there does not seem to be an overriding clamor to 

change the way that Congress is being informed. In fact—

Chairman SPECTER. Do you think the absence of an overwhelming clamor in Congress means anything? 

Mr. SCHOENFELD. Well, I think it does. 

[Laughter.] 

Mr. SCHOENFELD. Yes, Senator, I think it does. Congress operates by majorities, and there is not clearly not a majority in Congress that is pushing hard to change the way that the Judiciary 

Committee is informed about executive branch programs. 

Chairman SPECTER. Let me interrupt you just long enough to 

state my agreement with you on that. 

Mr. SCHOENFELD. I am sorry. Could you repeat that, Senator? 

Chairman SPECTER. No. 

[Laughter.] 

Chairman SPECTER. I agree with you that there is not an overwhelming clamor by Congress, but I would not say that means a 

whole hell of a lot, if I may use that expression publicly. But you 

are right, there is not a clamor. There is not a clamor. But where 

you have a program which violates the Foreign Intelligence Surveillance Act, which prohibits any electronic surveillance without a 

warrant issued by that court, and you have the interposition by the 

Government of Article II powers, inherent power, which trumps a 

statute, admittedly, but you can’t make a determination as to 

whether there is a legitimate exercise of Article II power because 

it is a balancing test—the President does not have a blank check. 

It is a balancing test. And you can’t balance if you don’t know what 

there is involved. What does Congress do? We could pass another 

law, but that one could be ignored, too, under the trumping doctrine. So what does Congress do? 

Mr. SCHOENFELD. Well, I think in this kind of clash, ultimately 

it is going to be decided as a political question. If the voters are 

unhappy with the way that the administration is treating Congress 

or unhappy with the way Congress is asserting its authority, presumably they will let our elected officials know in the next election. 

But my sense is that the voters are not unhappy—

Chairman SPECTER. Wait a minute—

Mr. SCHOENFELD. May I finish my statement? General Hayden, 

who was overseeing this so-called illegal program, and according to 

some who I have heard argue that he is a criminal for doing so, 

was just confirmed by a vote of 78–15 as CIA Director. So it suggests to me that there is quite a bit of opinion inside of Congress, 

and the Senate in particular, that does not regard this as an illegal 

program. That kind of vote is overwhelming. 

Chairman SPECTER. Well, I don’t think anybody ever suggested 

that anybody was a criminal. To be a criminal, you have to have 

36

criminal intent, and no one has challenged General Hayden’s good 

faith and the good faith of anybody in the administration in thinking that there are Article II powers. But if the voters decide that 

the Congress ought to be thrown out and a new Congress put in 

and Congress passes another law, the President can ignore that as 

well. We can throw out all the House of Representatives in November, throw out enough Senators to make an impression, but come 

back and pass another law. If you don’t know what Article II powers are being imposed to evaluate whether they are being trumped 

are not, you cannot tell. 

Dr. Schoenfeld, what do you think of the bill which would give 

to the Foreign Intelligence Surveillance Court—we had four former 

Foreign Intelligence Surveillance judges at this witness stand, and 

they examined the legislative proposal which would give to the 

FISA Court the program to determine constitutionality in accordance with the generalized approach that there has to be a judicial 

determination of constitutionality. They have a record for maintaining secrecy, and they have the expertise. What would you think 

of giving it to them to determine constitutionality? 

Mr. SCHOENFELD. I think that is a perfectly reasonable suggestion, and I am surprised the administration hasn’t moved with it. 

But it seems to me a plausible way to resolve this controversy. 

Chairman SPECTER. Well, the administration has not even said 

no, so we are not sure what their attitude is. But they have been 

asked many times, and we intend to continue to ask them more. 

Would you be able to answer some questions that we want to 

submit in writing, Dean Smolla? 

Mr. SMOLLA. Absolutely, Senator. 

Chairman SPECTER. Dr. Schoenfeld? 

Mr. SCHOENFELD. I will do my best. 

Chairman SPECTER. Mr. Anderson? 

Mr. ANDERSON. Yes, Senator. 

Chairman SPECTER. Professor Feldstein? 

Mr. FELDSTEIN. Yes. 

Chairman SPECTER. There are a lot of good questions which have 

been prepared by staff, and I think we have gone about as far as 

we can go here on the discussion. 

In addition to suggestions, Dean Smolla, on the Lugar-Specter 

bill, if you have any suggestions on 798, I would be interested in 

them. 

Mr. SMOLLA. I would be happy to supply them, Senator. 

Chairman SPECTER. It may be that Congress ought to leave that 

alone. Let me ask you, Professor Feldstein, do you think Congress 

ought to pick up 798 in view of what the Attorney General says, 

or perhaps more importantly, what Dr. Schoenfeld says and provide some standards for prosecuting newspapers and journalists? 

Mr. FELDSTEIN. Well, I am not an expert in this area, and I am 

not an attorney. 

Chairman SPECTER. If you are not an expert, Professor Feldstein, 

tell me who is. 

[Laughter.] 

Mr. FELDSTEIN. Well, maybe the Reporters Committee for Freedom of the Press, some press groups like that. You know, it used 

to be that reporters felt the First Amendment gave them enough 

37

protection. To me, the idea of prosecuting journalists under the Espionage Act is outlandish. If I thought there was serious impetus 

to do that, then perhaps a legislative remedy would be a good thing 

to head that off. 

Chairman SPECTER. Don’t you think there is an issue as to 

whether there is a serious intent to use these statutes for criminal 

prosecution? 

Mr. FELDSTEIN. Well, I fear, based on developments recently, 

that that is the case, and I think that if Congress were able to narrow that in, that would be excellent. I would fear, if Congress tried 

and failed, that that might be inadvertently interpreted as a green 

light. 

Chairman SPECTER. Why inadvertently interpreted? That would 

be advertently interpreted. 

[Laughter.] 

Mr. FELDSTEIN. OK. Fair enough. 

Chairman SPECTER. Mr. Anderson, do you think we ought to try 

to set standards for utilization of 798? 

Mr. ANDERSON. I am pretty sure that Dad would have thought 

that the First Amendment was the only standard that was needed. 

I am pretty sure that it would have been the only standard that 

he would have honored. I probably am more inclined to agree with 

Dr. Feldstein that when you start to meddle, it becomes very difficult. 

I have not seen and I have not heard discussed today, including 

the New York Times case, anything that I would consider even bordering on espionage or activities by reporters that were designed 

to hurt the national security of this country. But for those reports, 

we would not even be having this discussion. 

Chairman SPECTER. Dr. Schoenfeld, do you think we ought to try 

to provide some Congressional standards for 798? 

Mr. SCHOENFELD. Well, 798 appears to me to be rather unambiguous. That is one of the interesting features about that law, as 

compared to Section 793 and the Espionage Act, which we are not 

talking about here today. I am talking about Section 798, which is 

an entirely different statute. 

Section 793 and Section 794 are riddled with ambiguities. In the 

words of Harold Edgar and Benno Schmidt, who wrote an exhaustive and very brilliant study of them, those statutes are, in their 

words, ‘‘incomprehensible’’ and there would be good reason to review them. However, the benign indeterminacy that those statutes 

have created have also served us well over the years. Perhaps that 

indeterminate, ambiguous understanding of the law is now eroding 

in the face of more aggressive press willingness to publish secrets, 

and perhaps there might be some reason to revisit those statutes 

as well. 

Chairman SPECTER. Dean Smolla, you have already said you are 

unwilling to tamper with it. Do you stand by that? 

Mr. SMOLLA. Except to clarify it is not supposed to be used. I 

wouldn’t encourage Congress to make it easier to prosecute journalists. If there was any clarification, it would be to clarify that it was 

never intended to reach that. 

38

Chairman SPECTER. I would be interested in the specifics if you 

have some language. I would be interested in the specifics if anybody has some language on that subject. 

Thank you very much, gentlemen. We are going to give you the 

written questions because they are profound questions the staff has 

prepared. Thank you all. 

[Whereupon, at 12 noon, the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

39


33835.192
40


33835.021
41


33835.022
42


33835.023
43


33835.024
44


33835.025
45


33835.026
46


33835.027
47


33835.028
48


33835.029
49


33835.193
50


33835.002
51


33835.003
52


33835.004
53


33835.005
54


33835.006
55


33835.007
56


33835.008
57


33835.009
58


33835.010
59


33835.011
60


33835.012
61


33835.013
62


33835.014
63


33835.015
64


33835.016
65


33835.017
66


33835.018
67


33835.019
68


33835.030
69


33835.031
70


33835.032
71


33835.033
72


33835.034
73


33835.035
74


33835.036
75


33835.037
76


33835.038
77


33835.039
78


33835.040
79


33835.041
80


33835.042
81


33835.043
82


33835.044
83


33835.045
84


33835.046
85


33835.047
86


33835.048
87


33835.049
88


33835.050
89


33835.051
90


33835.052
91


33835.053
92


33835.183
93


33835.054
94


33835.055
95


33835.056
96


33835.057
97


33835.058
98


33835.059
99


33835.060
100


33835.061
101


33835.062
102


33835.063
103


33835.064
104


33835.065
105


33835.066
106


33835.109
107


33835.067
108


33835.068
109


33835.069
110


33835.070
111


33835.071
112


33835.072
113


33835.073
114


33835.074
115


33835.075
116


33835.076
117


33835.077
118


33835.078
119


33835.079
120


33835.080
121


33835.081
122


33835.082
123


33835.083
124


33835.084
125


33835.085
126


33835.086
127


33835.087
128


33835.088
129


33835.089
130


33835.090
131


33835.091
132


33835.092
133


33835.093
134


33835.094
135


33835.095
136


33835.096
137


33835.097
138


33835.098
139


33835.099
140


33835.100
141


33835.102
142


33835.103
143


33835.101
144


33835.104
145


33835.105
146


33835.106
147


33835.107
148


33835.108
149


33835.110
150


33835.111
151


33835.112
152


33835.113
153


33835.114
154


33835.115
155


33835.116
156


33835.117
157


33835.118
158


33835.119
159


33835.120
160


33835.121
161


33835.122
162


33835.123
163


33835.124
164


33835.125
165


33835.126
166


33835.127
167


33835.128
168


33835.129
169


33835.130
170


33835.131
171


33835.132
172


33835.133
173


33835.134
174


33835.135
175


33835.136
176


33835.137
177


33835.138
178


33835.139
179


33835.140
180


33835.141
181


33835.142
182


33835.143
183


33835.144
184


33835.145
185


33835.146
186


33835.147
187


33835.148
188


33835.149
189


33835.150
190


33835.151
191


33835.152
192


33835.153
193


33835.154
194


33835.155
195


33835.156
196


33835.157
197


33835.158
198


33835.159
199


33835.160
200


33835.161
201


33835.162
202


33835.163
203


33835.164
204


33835.165
205


33835.166
206


33835.167
207


33835.168
208


33835.169
209


33835.170
210


33835.171
211


33835.172
212


33835.173
213


33835.174
214


33835.175
215


33835.176
216


33835.177
217


33835.178
218


33835.179
219


33835.180
220


33835.181
221


33835.182
222


33835.184
223


33835.185
224


33835.186
225


33835.187
226


33835.188
227


33835.189
228


33835.190
229

Æ


33835.191