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ESPIONAGE ACT AND THE LEGAL AND 

CONSTITUTIONAL ISSUES RAISED BY WIKILEAKS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

DECEMBER 16, 2010 

Serial No. 111–160 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

(III) 

C O N T E N T S 

DECEMBER 16, 2010 

Page 

OPENING STATEMENTS 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Member, Committee on the Judiciary ........................................ 3 

The Honorable William D. Delahunt, a Representative in Congress from 

the State of Massachusetts, and Member, Committee on the Judiciary ......... 4 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Member, Committee on the Judiciary ......................... 5 

The Honorable Charles A. Gonzalez, a Representative in Congress from the 

State of Texas, and Member, Committee on the Judiciary .............................. 5 

The Honorable Ted Poe, a Representative in Congress from the State of 

Texas, and Member, Committee on the Judiciary ............................................. 5 

WITNESSES 

Mr. Geoffrey R. Stone, Professor and former Dean, University of Chicago 

Law School 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

Mr. Abbe David Lowell, Partner, McDermott Will & Emery, LLP 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 25 

Mr. Kenneth L. Wainstein, Partner, O’Melveny & Myers, LLP 

Oral Testimony ..................................................................................................... 39 

Prepared Statement ............................................................................................. 41 

Mr. Gabriel Schoenfeld, Ph.D., Senior Fellow, Hudson Institute 

Oral Testimony ..................................................................................................... 48 

Prepared Statement ............................................................................................. 50 

Mr. Stephen I. Vladeck, Professor of Law, American University 

Oral Testimony ..................................................................................................... 66 

Prepared Statement ............................................................................................. 69 

Mr. Thomas S. Blanton, Director, National Security Archive, George Washington University 

Oral Testimony ..................................................................................................... 74 

Prepared Statement ............................................................................................. 77 

Mr. Ralph Nader, Legal Advocate and Author 

Oral Testimony ..................................................................................................... 87 

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ESPIONAGE ACT AND THE LEGAL AND CONSTITUTIONAL ISSUES RAISED BY WIKILEAKS 

THURSDAY, DECEMBER 16, 2010 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in room 

2141, Rayburn House Office Building, the Honorable John Conyers, 

Jr. (Chairman of the Committee) presiding. 

Present: Representatives Conyers, Scott, Jackson Lee, Delahunt, 

Johnson, Quigley, Gutierrez, Schiff, Sensenbrenner, Coble, 

Gallegly, Goodlatte, King, Frank, Gohmert, Poe, and Harper. 

Staff Present: (Majority) Perry Apelbaum, Staff Director and 

Chief Counsel; Elliot Mincberg, Counsel; Sam Sokol, Counsel; Joe 

Graupensberger, Counsel; Nafees Syed, Staff Assistant; (Minority) 

Caroline Lynch, Counsel; Kimani Little, Counsel; and Kelsey 

Whitlock, Clerk. 

Mr. CONYERS. Good morning. The hearing on the Espionage case 

and the legal and constitutional issues raised by WikiLeaks before 

the Committee on Judiciary is now about to take place. We welcome everyone here to the hearing. In the Texas v. Johnson case 

in 1989, the Supreme Court set forth one of the fundamental principles of our democracy. That is, that if there is a bedrock principle 

underlying the First Amendment, it is that the government may 

not prohibit the expression of an idea simply because society finds 

the idea itself offensive or disagreeable. 

That was Justice William Brennan. Today the Committee will 

consider the WikiLeaks matter. The case is complicated, obviously. 

It involves possible questions of national security, and no doubt important subjects of international relations, and war and peace. But 

fundamentally, the Brennan observation should be instructive. 

As an initial matter, there is no doubt that WikiLeaks is in an 

unpopular position right now. Many feel their publication was offensive. But unpopularity is not a crime, and publishing offensive 

information isn’t either. And the repeated calls from Members of 

Congress, the government, journalists, and other experts crying out 

for criminal prosecutions or other extreme measures cause me 

some consternation. 

Indeed, when everyone in this town is joined together calling for 

someone’s head, it is a pretty sure sign that we might want to slow 

down and take a closer look. And that is why it was so encouraging 

2 

to hear the former Office of Legal Counsel, Jack Goldsmith, who 

served under George W. Bush caution us only last week. And he 

said, I find myself agreeing with those who think Assange is being 

unduly vilified. I certainly do not support or like his disclosure of 

secrets that harm U.S. national security or foreign policy interests. 

But as all the handwringing over the 1917 Espionage Act shows, 

it is not obvious what law he has violated. 

Our country was founded on the belief that speech is sacrosanct, 

and that the answer to bad speech is not censorship or prosecution, 

but more speech. And so whatever one thinks about this controversy, it is clear that prosecuting WikiLeaks would raise the 

most fundamental questions about freedom of speech about who is 

a journalist and about what the public can know about the actions 

of their own government. 

Indeed, while there’s agreement that sometimes secrecy is necessary, the real problem today is not too little secrecy, but too 

much secrecy. Recall the Pentagon papers case, Justice Potter 

Stewart put it, when everything is classified, nothing is classified. 

Rampant overclassification in the U.S. system means that thousands of soldiers, analysts and intelligence officers need access to 

huge volumes of purportedly classified material. And that necessary access in turn makes it impossible to effectively protect 

truly vital secrets. 

One of our panelists here today put it perfectly in a recent appearance. He explained, our problem with our security system, and 

why Bradley Manning can get his hands on all these cables, is we 

got low fences around a vast prairie because the government classifies just about everything. What we really need are high fences 

around a small graveyard of what is really sensitive. Furthermore, 

we are too quick to accept government claims that risk the national 

security and far too quick to forget the enormous value of some national security leaks. As to the harm caused by these releases most 

will agree with the Defense Secretary, Bob Gates, his assessment. 

Now, I have heard the impact of these releases on our foreign 

policy described as a meltdown, as a game changer, and so on. I 

think those descriptions are fairly significantly overwrought. And 

Mr. Gates continues, is this embarrassing? Yes. Is it awkward? 

Yes. Consequences for U.S. policy? I think fairly modest. 

So the harm here, according to our Republican Defense Secretary, is fairly modest. Among the other side of the ledger, there 

is no need to go all the way back to the Pentagon papers to find 

examples of national security leaks that were critical to stopping 

government abuses and preserving a healthy democracy. They happen all the time. 

In 2005, The New York Times published critical information 

about widespread domestic surveillance. Ultimately, we learned of 

a governmental crisis that included threats of mass resignations at 

the Justice Department and outrageous efforts to coerce a sick attorney general into approving illegal spying over the objections of 

his deputy and legal counsel’s office. If not for this leak, we would 

have never learned what a civil libertarian John Ashcroft is. 

In 2004, the leak of a secret office of legal counsel interrogation 

memos led to broader revelations of the CIA’s brutal enhanced interrogation programs at Black sites. These memos had not been 

3 

previously revealed to the Judiciary Committee or to many in Congress. Some feel this harmed national security. But to many Americans, the harm was a secret program of waterboarding and other 

abuses that might never have been ended but for the leak. 

And so we want to, as the one Committee in the Congress that 

I have a great and high regard for, take a closer look at the issues 

and consider what, if any, changes in the law might be necessary. 

And I want to welcome this very distinguished panel. I have read 

late into the night, and I was awake most of the time when I was 

reading this, some really great testimony. And I am so glad that 

you are all here with us. I would like now to recognize my friend 

and Ranking Member, Judge Louie Gohmert. 

Mr. GOHMERT. Thank you, Chairman. And I do appreciate the 

witnesses here. Before I begin my actual statement, let me just say 

I appreciate, and am also intrigued by your metaphorical use of the 

need for high fences around a small graveyard. But I am curious, 

are you saying this Administration is located in a small graveyard? 

Is that the point? 

Mr. CONYERS. See me after the hearing, please, Judge Gohmert. 

Mr. GOHMERT. Thank you, Chairman. And I appreciate the 

Ranking Member Smith asking me to stand in. But the release last 

month by WikiLeaks of over 250,000 classified and diplomatic U.S. 

documents threatens our national security, our relations with foreign governments, and continued candor from embassy officials and 

foreign sources. Many have applauded the Web site and its founder, Julian Assange, as a hero advocating the continued release of 

classified and sensitive government documents. But to do so is both 

naive and dangerous. Web sites such as WikiLeaks and the news 

publications that reprint these materials claim to promote increased government transparency. 

But the real motivation is self-promotion and increased circulation to a large extent. They claim to be in pursuit of uncovering 

government wrongdoing but dismiss any criticism that their actions may be wrong or damaging to the country. As long as there 

have been governments, there have been information protected by 

those governments. There have clearly been documents classified 

that should not have been classified. While there is legitimate dispute over the extent to which information is protected and classified, it is simply unrealistic to think that the protection of information serves no legitimate purpose. 

Much attention has been given to this most recent WikiLeaks release. Many dismiss that any negative repercussions resulted from 

the leak arguing that the documents, while embarrassing to the 

U.S., did no real harm to the country. But what about previous 

leaks by this Web site? On July 25, 2010, WikiLeaks released confidential military field reports on the war in Afghanistan. This site 

released Iraq war-related documents on October 23, 2010. Both of 

these leaks reveal sensitive military information that endanger 

military troops and may have bolstered our enemy’s campaigns 

against us. 

Last month’s WikiLeaks release has thrust in the spotlight an 

old, some would even say, arcane statute, the Espionage Act of 

1917. It has also resurrected an age-old debate on First Amendment protections afforded to media publications. 

4 

But today we are confronted with a new kind of media, the Internet blog. What are the boundaries of free speech, how do we balance this freedom with the Government’s need to protect some information. The drafters of the 1917 Act could not have foreseen 

that nearly 100 years later, sensitive information could have been 

transmitted to a global audience instantaneously. America’s 

counterterrorism efforts must respond to new and emerging threats 

such as home-grown terrorism. Our criminal laws must also keep 

pace with advancing technologies that enable widespread dissemination of protected information. This time the leak involved primarily diplomatic cables, but previous leaks disclosed even more 

sensitive information. 

And the next leak could be even more damaging. It could disclose 

accordinance of where military personnel are located overseas or 

even reveal the next unannounced visit to Iraq or Afghanistan by 

President Obama. This isn’t simply about keeping government secrets secret, it is about the safety of American personnel overseas 

at all levels from the foot soldier to the commander-in-chief. 

With that, Mr. Chairman, I yield back. 

Mr. CONYERS. Thank you, Judge Gohmert. This may be the last 

time that we have an opportunity to recognize our good friend, Bill 

Delahunt of Massachusetts. He has served the Committee in a very 

important way, and we yield to him at this time. 

Mr. DELAHUNT. Well, thank you, Mr. Chairman. You know, as 

you are aware, I also serve on the Foreign Affairs Committee. And 

during that service, I had the opportunity to Chair the Committee 

on Oversight. And I must say, and this is true of both the Bush 

and the Obama administrations, it was difficult for me in that capacity, and it was difficult for the Chair of the full Committee, to 

secure information from the executive. I would submit that this 

particular hearing should be viewed in a much larger context. 

Leaks that obviously put people at risk, that put the United States 

at risk and methods, et cetera, there has to be parameters. 

But I think we are at a moment in our history where there is 

an overwhelming overclassification of material. And I think that 

we, in our role as Members of the first branch of government, 

ought to examine very, very carefully that the classification procedures. When you inquire of any executive agency and pose the very 

simple question, well, why is it classified? It is extremely difficult 

to get a direct and clear answer. Who does the classification? Is it 

the Secretary of State or the Attorney General? Who does the classification? During the course of my service, I discovered it was 

some low-level bureaucrat. 

And the process itself is arcane, and there is no accountability, 

I dare say, in the classification processes that exist within the executive branch. And that is very dangerous, because secrecy is the 

trademark of totalitarianism. To the contrary, transparency and 

openness is what democracy is about. So while there is a focus now 

on the issue of WikiLeaks, I think it provides an opportunity for 

this Committee, and I think this is a concern that is shared by both 

Republicans and Democrats, about the classification process itself. 

There is far too much secrecy and overclassification within the executive branch, and I think it puts American democracy at risk. 

And with that I yield back. 

5 

Mr. CONYERS. Thank you, Bill. I am pleased now to turn to Howard Coble of North Carolina, a senior Member, who will soon be 

Chair of at least one Subcommittee, maybe two, we don’t know yet. 

Mr. COBLE. Mr. Chairman, you are more optimistic than I am, 

but I appreciate that. I have no detailed statement. I want to associate my remarks—yield my remarks regarding the gentleman 

from Massachusetts. He will indeed be missed on this Committee. 

This is a crucial issue as known to all of us. And not unlike many 

crucial issues, and perhaps most crucial issues, it is laced very generously with complications. Good to have the panel with us. And, 

Mr. Chairman, I yield back. 

Mr. CONYERS. Judge, would you care to make an opening comment? 

Mr. GONZALEZ. Mr. Chairman, I do not have any opening comments regarding the testimony and such, just looking forward to it. 

But I do want to just say good-bye to Bill. Obviously, of the Massachusetts delegation, he is the one Member that I can clearly understand despite that accent of theirs. But truly, he has been a good 

friend, and again, just such a valuable Member to the House, and 

he will be missed. But I am hoping that, of course, he made the 

decision because he is moving on to something that is going to be 

even more rewarding than what he has done here in Congress. 

Again, thank you very much, Mr. Chairman, for the opportunity. 

I yield back. 

Mr. CONYERS. Thank you, Judge Gonzalez. Judge Ted Poe, I 

would recognize you at this time, sir. 

Mr. POE. Thank you, Mr. Chairman. I ditto what has been said 

about Bill Delahunt, a wonderful Member of this Committee, hate 

to see him go, although we disagreed probably on everything. 

A couple comments about this situation. I see two issues. One 

issue is we got to find the original leak and what caused it, who 

did it and hold them accountable. The other issues that this brings 

forth is the fact that after 9/11, the big talk was we need to share 

information with different agencies in the United States Government because we don’t know what one agency is doing or knows 

that should be shared. And so now we have mass sharing and now 

we seem like we are going to move away from that because of this 

situation. 

I have no sympathy for the alleged thief in this situation. He is 

no better than a Texas pawnshop dealer that deals in stolen merchandise and sells it to the highest bidder, but he is doing it for 

political gain. He should be held accountable. But, on the other 

hand, I am very concerned about our own overclassification of information. The easiest way for a government agency to take information is to say, it is classified, only special folks get to know what 

is in it. And I have been to a lot of classified briefings. And frankly, 

I have read a lot of that in the newspaper before that meeting ever 

took place, and it wasn’t classified. Somebody just decides to make 

it classified and then you have that whole problem of overclassification of documents. 

And lastly, the security of our information is important. And we 

have to—those who allowed this to occur by incompetence, negligence, or whatever, we have to fix that problem. I am very concerned about that because of the fact that, you know, I suppose we 

6 

are the greatest and most powerful Nation that ever existed, and 

we need to ratchet up our security to keep hackers from getting 

into it, and why did this occur and who allowed it to occur and 

what went wrong to make this situation now go worldwide? 

It is like a bunch of folks at a bank decide to hold a Christmas 

party down the street and they all take off and leave the vault 

open. You know, there is a security problem with that kind of 

thing. And so I would hope that we would fix the security problem, 

find out what occurred and how it did occur. We ought to think 

through the idea of overclassification. And then thieves for political 

reasons or any other reasons, they also need to be held accountable. I yield back. 

Mr. CONYERS. Thank you, Judge Poe. We welcome our witnesses, 

all seven. Ralph Nader, Professor Steve Vladeck, Mr. Gabriel 

Schoenfeld, Attorney Kenneth Wainstein, Thomas Blanton, Director of the National Security Archive, Attorney Abbe Lowell, well 

known to this Committee and to previous congresses. 

And our first witness, Professor Geoffrey Stone, Professor of Law 

and Former Dean of the University of Chicago Law School. He has 

written quite a bit on constitutional law, several books, The First 

Amendment, Government Power. One of his books, Perilous Times, 

Free Speech in War Time, was just recently praised by Justice 

Elena Kagen as a masterpiece of constitutional history that promises to redefine the national debate on civil liberties and free 

speech. 

We are honored by you being here, and we ask you to be our first 

witness. And all the statements of all of our witnesses will be introduced in their entirety into the record. Welcome. 

TESTIMONY OF GEOFFREY R. STONE, PROFESSOR AND 

FORMER DEAN, UNIVERSITY OF CHICAGO LAW SCHOOL 

Mr. STONE. Chairman Conyers, Judge Gohmert, Members of the 

Committee, thank you very much for inviting me and giving me 

this opportunity to speak with you about these issues. What I 

would like to do is address the constitutionality of the proposed 

SHIELD Act, which has been introduced in both Houses of Congress. 

The SHIELD Act would amend the Espionage Act of 1917 to 

make it a crime for any person knowingly and willfully to disseminate in any manner, prejudicial to the safety or interest of the 

United States, any classified information concerning human intelligence activities of the United States. 

Now, although this act might be constitutional as applied to government employees who unlawfully leak such material to persons 

who are unauthorized to receive it, it is plainly unconstitutional as 

applied to other individuals or organizations who might publish or 

otherwise disseminate the information after it has been leaked. 

With respect to such other speakers, the Act violates the First 

Amendment unless, at the very least, it is expressly limited to situations in which the dissemination of the specific information at 

issue poses a clear and imminent danger of grave harm to the Nation. 

The clear and present danger standard in varying forms has 

been a central element of our First Amendment jurisprudence ever 

7 

since Justice Oliver Wendell Holmes first enunciated it in his 1919 

opinion in Schenck v. the United States. In the 90 years since 

Schenck, the precise meaning of clear and present danger has 

evolved, but the principle that animates it was stated eloquently by 

Justice Louis Brandeis in his brilliant 1927 concurring opinion in 

Whitney v. California. ‘‘Those who won or our independence,’’ wrote 

Brandeis, ‘‘did not exalt order at the cost of liberty. They understood that only an emergency can justify repression. Such,’’ he said, 

‘‘must be the rule if authority is to be reconciled with freedom. 

Such is the command of the Constitution. It is therefore always 

open to challenge a law abridging free speech by showing that 

there was no emergency justifying it.’’ 

This principle is especially powerful in the context of government 

efforts to suppress speech concerning the activities of the government itself. As James Madison observed, ‘‘a popular government 

without popular information with the means of acquiring it is but 

a prologue to a forest or a tragedy or perhaps both.’’ As Madison 

warned, if citizens do not know what their own government is 

doing, then they are hardly in a position to question its judgments 

or to hold their elected representatives accountable. 

Government secrecy, although surely necessary at times, can also 

pose a direct threat to the very idea of self-governance. Nonetheless, the First Amendment does not compel government transparency. It leaves the government extraordinary autonomy to protect its own secrets. It does not accord anyone the right to have the 

government disclose information about its actions or policies, and 

it cedes to the government considerable authority to restrict the 

speech of its own employees. 

What it does not do, however, is to leave the government free to 

suppress the free speech of others when it has failed itself to keep 

its own secrets. At that point, the First Amendment kicks in with 

full force. And as Brandeis explained, only an emergency can then 

justify suppression. We might think of this like the attorney/client privilege. The client is free to keep matters secret by disclosing 

them to no one. He is also free to disclose certain matters to his 

attorney, who is under a legal obligation to respect the confidentiality of the client’s disclosures. 

In this sense, the attorney is sort of like the government employee. If the attorney violates the privilege by revealing the client’s confidences, say, to a reporter, then the attorney can be punished for doing so, but the newspaper cannot constitutionally be 

punished for disseminating the information. 

Now, some may wonder whether it makes sense to give the government so little authority to punish the dissemination of unlawfully leaked information, but there are sound reasons for insisting 

on a showing of clear and present danger before the government 

can punish speech in this context. 

First, the mere fact that the dissemination of such information 

might, in the words of the proposed Act, in any matter, ‘‘prejudice 

the interest of the United States’’ does not mean that the harm 

outweighs the benefit of publication, as Chairman Conyers noted. 

In many circumstances, such information may indeed be extremely 

valuable to public understanding. 

8 

Second, a case-by-case balancing of harm against benefit would 

be unwieldy, unpredictable and impracticable. Clear rules are essential in the realm of free speech. Indeed, that is one reason why 

we grant the government so much authority to restrict the speech 

of its own employees, rather than insisting that in every case the 

government must demonstrate that the harm outweighs the benefit. 

Third, as we have learned from our own history, there are great 

pressures that lead both government officials and even the public 

to overstate the potential harm of publication in times of national 

anxiety. A strict clear and present danger standard serves as a barrier to protect us against that danger. 

And finally, a central principle of the First Amendment is that 

the suppression of public speech must be the government’s last 

rather than its first resort in addressing a potential problem. If 

there are other means by which the government can prevent or reduce the danger, it must exhaust those other means before it can 

even entertain the prospect of suppressing the freedom of speech. 

In the secrecy situation, the most obvious and the correct way for 

government to prevent the danger is by ensuring that information 

that must be kept secret is kept secret, and is not leaked in the 

first place. Indeed, the Supreme Court made this very point less 

than a decade ago in a case known as Bartnicki v. Vopper, in which 

the court held that when an individual receives information from 

a source who has obtained it unlawfully, that individual may not 

be punished for publicly disseminating the information ‘‘absent a 

need of the highest order.’’ 

The Court explained that ‘‘if the sanctions that presently attach 

to the underlying criminal act do not provide sufficient deterrence, 

then perhaps those sanctions should be made more severe.’’ But it 

would be, the Court said, ‘‘quite remarkable to hold that an individual can constitutionally be punished merely for disseminating 

information because the government itself failed to deter conduct 

by a nonlaw abiding party.’’ 

This may seem a disorderly situation, but the court has, in fact, 

come up with a good solution. If we grant the government too much 

power to punish those who disseminate information, then we risk 

too great a sacrifice of public deliberation. If we grant the government too little power to control confidentiality at the source, then 

we risk too great a sacrifice of secrecy. The solution is to reconcile 

the irreconcilable values of secrecy, on the one hand, and accountability, on the other, by guaranteeing both a strong authority of the 

government to prohibit leaks, and an expansive right of others to 

disseminate information to the public. 

The bottom line then is this: The proposed SHIELD Act is unconstitutional. At the very least, it must limit its prohibition to those 

circumstances in which the individuals who publicly disseminated 

classified information knew that the dissemination would create a 

clear and imminent danger of grave harm to our Nation or our people. Thank you. 

Mr. CONYERS. Thank you very much, Professor. 

[The prepared statement of Mr. Stone follows:] 

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PREPARED STATEMENT OF GEOFFREY R. STONE


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Mr. CONYERS. Our next witness is well known here, Abbe Lowell, 

Esquire, partner at McDermott, Will & Emery. As a matter of fact, 

he served as chief counsel during the President Bill Clinton impeachment. He is also a former special assistant to the Attorney 

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larly in espionage matters, including the 2007 AIPAC case. We welcome you back here again, Abbe. You may proceed. 

TESTIMONY OF ABBE DAVID LOWELL, PARTNER, 

McDERMOTT WILL & EMERY, LLP 

Mr. LOWELL. Thank you, Mr. Chairman and Judge Gohmert. It 

is always an honor to be in this particular room. I appreciate you 

receiving my statement. Let me say that the perspective I bring is, 

as the Chairman said, comes from basically three points of reference. The first is my service in the Justice Department for the 

Attorney General when issues of classification were being discussed. The second is 41⁄2 years of litigating under the Espionage 

Act in the so-called AIPAC lobbyist case that ended 30 days before 

trial when the Justice Department stopped it and now representing 

a former Department of State employee also charged under the Espionage Act. 

These oversight hearings could not be more important or more 

timely to look at this principal law that is used whenever cases like 

the AIPAC lobbyist case and now the WikiLeaks case make the 

news. However, this law, as everyone has said, is about 100 years 

old and it had flaws in it in terms of its language from the moment 

it was passed, and it has certainly shown to be outdated, at least 

ever since the debate that occurred in the Pentagon Papers case in 

1971. 

However, as the Chair has said, for all those commentators who 

are demanding that Congress do something here and now, this 

Committee knows better that headline news is not the time to pass 

a new criminal law, especially when there are important constitutional principles at stake, because that inevitably leads to decades 

of unintended consequences and litigation. 

So what this Committee is doing to begin the process of carefully 

considering these complicated issues is precisely the way to go, and 

it is the speed in which to travel. Let me start by issuing what I 

think are the four corners of the discussion. The first is is that everyone agrees that there is a need for a strong criminal law to address real spying and espionage, to address the intentional disclosure of what could be called classified national defense information 

with the intent to injure the United States or to assist an adversary. 

There needs to be a law prohibiting the mishandling of properly 

classified information and against those three important national 

security principles needs the balance of protecting important constitutional rights. The problem is that the current law lumps all 

that I have said together, and the sections of the current law apply 

equally and have been applied equally when they are being used 

to go after a former FBI agent spy, Robert Hanssen, in disguise in 

secret in drop zones or two foreign policy analysts having a spaghetti lunch across the river near the Pentagon. 

And any law that can apply to those two circumstances is the 

law that needs to be carefully scrutinized. One more introductory 

remark, if I may, and this has already been said by everybody 

across the way from me, when Congress starts deciding how to 

criminalize the disclosure of classified information, it should take 

into consideration how much overclassification there really is. 

23 

We have seen in the WikiLeaks events material that bear a classification stamp that simply recounts what some diplomat believes 

is the private life preferences of a foreign leader as opposed to 

when we are worried about what that foreign leader might do in 

a military action when properly or improperly provoked, yet they 

both bear the same classification stamp. 

The problems of the law are many. The current law, the Espionage Act particularly, is so vague and so broad because it deals 

with words that don’t have obvious meanings, such as information 

relating to the national defense, so that they can be applied immediately to a government employee who signs a confidentiality 

agreement, and then it could be applied to the foreign policy analyst who meets with that government employee and discusses what 

the government employee knew. And then it could be applied to a 

reporter who is overhearing the conversation between the government employee and the analyst and prints a story. 

Not only that, the current laws can be applied to each of these 

individuals whether or not there is an actual document involved, 

or whether the subject of the leak is an oral conversation. And not 

only that, a prosecution can be brought without the requirement of 

any of the disclosures involving an actual intent to injure the 

United States or to assist an adversary. And all this is made more 

complicated when there are good motives involved, such as somebody trying to bring to the attention of the public a lie the government has stated, or a corrupt contract, or when the press is doing 

its job or when lobbyists are doing theirs. 

Because as the cases state, the First Amendment applies to the 

exchange of speech and ideas in our free society, whether the information is general foreign policy material or whether it happens to 

be classified, so the issue is the balancing of the very real and important national security interests of the United States in ever 

dangerous times. 

Over the past few decades, courts have grappled how best to 

apply the words of the law to these situations. In the AIPAC lobbying case, for example, the court made clear that to sustain a case 

under the Espionage Act, the government would have to prove beyond a reasonable doubt that the defendants had a specific criminal intent to injure the United States and that they acted in bad 

faith. 

Now that there is the public disclosure of WikiLeaks and Julian 

Assange, with thousands of documents, these same questions arise 

again. Does the law apply extraterritorially? Is he or is he not a 

journalist? Is there the ability to show an intent to injure? All of 

those are the beginning and not the end. So while the courts are 

straightjacketed, this Committee in Congress is not, it can operate 

on a clean slate. And as I have indicated in my statement, let me 

give you what I think are five principles that any new law should 

consider: First, we must define spying differently from leaking; second, we need to define what classified information, the release of 

which can ever be subject to criminal prosecution; third, we must 

distinguish between disclosures of classified information done with 

an intent to injure the United States, and those where a person is 

not acting with that criminal intent; fourth, we must allow for 

some defense when information is improperly classified or when 

24 

that information is so out in the public, that to base a criminal 

prosecution on it defies the notions of fairness and due process; and 

last, we need a law that will rationalize how it is possible to apply 

it to government officials and nongovernment officials, especially 

when those nongovernment officials are protected by the First 

Amendment. 

That is easier said than done. This is the beginning I know of 

a long process. I know it is possible to balance those two interests, 

and along with my panel members, I stand ready to help in any 

way I can. 

Mr. CONYERS. Thank you, Abbe Lowell. 

[The prepared statement of Mr. Lowell follows:] 

25 

PREPARED STATEMENT OF ABBE DAVID LOWELL


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Mr. CONYERS. Our next witness, Kenneth Wainstein, is well 

known to the Committee as well. He testified here last year. And 

he also testified as the assistant attorney general on national security. So we welcome him back. He is a partner at O’Melveny & 

Myers. And he has a particular point of view that the Committee 

feels is very important that we hear at this time. 


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TESTIMONY OF KENNETH L. WAINSTEIN, PARTNER, 

O’MELVENY & MYERS, LLP 

Mr. WAINSTEIN. Thank you very much, Chairman Conyers, Judge 

Gohmert, Members of the Committee. It is an honor to appear before you today along with this panel of very distinguished experts—— 

Mr. CONYERS. Pull the mic closer to you, please. 

Mr. WAINSTEIN. There you go. I missed the on button. I want to 

thank you again, you, Judge Gohmert, Members of the Committee. 

It is an honor to appear before you today along with this panel of 

distinguished experts and to testify about the recent WikiLeaks releases. This situation reflects a fundamental tension in our democracy. On one hand, there is the importance of the free press and 

the need to think very long and very hard before taking any steps 

that may chill the media’s reporting on the workings of government. 

On the other hand, there is the need to keep our national security operations confidential so that we can effectively defend our 

Nation against the threats it faces. Stephen Vladeck and I testified 

about this very issue before the Senate Judiciary Committee just 

this May, and at that time, our concern revolved primarily around 

the possibility of a leak to a traditional news organization. 

Since May, however, we have all learned that there is a much 

more serious threat, a threat posed by an organization that is committed not to the traditional media function of reporting newsworthy information, but to the mass and indiscriminate disclosure 

of sensitive information. 

Thanks to WikiLeaks the government now has two very important decisions to make. The first is whether to prosecute Assange 

and WikiLeaks. The second is whether to revise the laws of the Espionage Act to strike a better and clearer balance between security 

and freedom of the press. 

In terms of prosecution, the stakes for the government are very 

high. If WikiLeaks and Assange end up facing no charges for their 

mass document releases, which are about as audacious as I have 

ever heard of, they will conclude that they are legally invulnerable, 

they will redouble their efforts to match or exceed their recent exploits and copycat operations will sprout up around the Internet. 

I was encouraged to hear the Attorney General’s remarks the 

other day, and I commend the Justice Department for apparently 

undertaking a careful but determined effort to look into mounting 

a prosecution. If this effort does, in fact, ripen into a criminal case 

against Assange and WikiLeaks, it will certainly raise a host of 

hotly litigated issues, the most heated of which will be a strong 

constitutional challenge under the First Amendment. 

The main issue here will be the following: If WikiLeaks can be 

charged with espionage for these releases, there is no legal and no 

logical reason why a similar prosecution could not lie against all 

the other mainstream news organizations because those organizations, at one time or another, published similarly sensitive materials. And if every news outlet in our country is in fear of prosecution then what happens to freedom of the press? 

This surely is a serious concern. It is the reason why the government has never prosecuted a news organization for espionage, and 

40 

it is the reason that we all should pause and think through the implications before charging into a prosecution here. The key to overcoming this concern is to demonstrate that WikiLeaks warrants 

this exceptional treatment because it is fundamentally different 

from other and real media organizations, by showing, for instance, 

that while the media focuses on disseminating newsworthy information, WikiLeaks focuses, first and foremost, on simply obtaining 

and disclosing official secrets. While the media gathers news 

through investigative reporting, WikiLeaks uses encrypted Internet 

drop boxes that are specifically designed to collect leaked information and circumvent the law. While the media typically publishes 

only those pieces of sensitive information that relate to a particular 

story, WikiLeaks indiscriminately releases huge troves of leaked 

materials. 

By clearly showing how WikiLeaks is fundamentally different, 

the government should be able to demonstrate that any prosecution 

here is the exception and is not the sign of a more aggressive prosecution effort against the press. 

The government’s second decision here is whether to revise the 

Espionage Act. All agree that the statute is badly outdated, and it 

could use revision on a number of points such as clarifying the 

level of intent required to prosecute a leak case; determining when 

the government does and does not need to show that the leak actually risked damage to our national security before proceeding with 

a case; dropping the term national defense information and providing a clear definition of that information that is protected by the 

Espionage Act. 

A clarification of these issues would go a long way toward making the statute more directly relevant to the espionage threats of 

the 21st century. 

WikiLeaks presents a challenge for the executive branch, which 

now has to decide how to respond to these disclosures, but it also 

presents a serious challenge for Congress, which has to decide 

whether we need new statutory tools to deal with this new threat. 

I commend the Committee for stepping up to this challenge. 

Given the fundamental importance of this issue to our civil liberties and to our national security, I am confident it will be time 

well spent. I appreciate you including me in this important effort, 

and I stand ready to answer any questions you may have. Thank 

you, Mr. Chairman. 

Mr. CONYERS. We appreciate you coming before us once again. 

[The prepared statement of Mr. Wainstein follows:] 

41 

PREPARED STATEMENT OF KENNETH L. WAINSTEIN


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Mr. CONYERS. I think most people on the Committee are resigned 

to the fact that we have to look at the Espionage Act in the coming 

Congress. The question is, of course, what do we do and how much 

change? We will be talking about that with you when we begin our 

question period. Welcome, Mr. Schoenfeld, senior fellow at Hudson 

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rity, the Media and the Rule of Law. You have testified in Congress 

on the responsibilities of the press during wartime, and we welcome you to the Judiciary Committee this morning. 

TESTIMONY OF GABRIEL SCHOENFELD, Ph.D., 

SENIOR FELLOW, HUDSON INSTITUTE 

Mr. SCHOENFELD. Thank you very much, Mr. Chairman, Judge 

Gohmert, distinguished Members of the Committee. It is an 

honor—— 

Mr. CONYERS. I am afraid it is not on. 

Mr. SCHOENFELD. It is an honor, Mr. Chairman, Judge Gohmert, 

distinguished Members of the Committee, to appear here today before you to discuss this issue of such vital concern to our country. 

The recent massive disclosure by WikiLeaks of U.S. diplomatic documents has sparked the most intense discussion of governmental 

secrecy in our country since the Pentagon Papers were published 

by the New York Times in 1971. Leading officials of the Obama administration have decried the damage. Ranking Republicans and 

Democrats in Congress have called for the prosecution of Julian 

Assange under the Espionage Act. 

Whether or not the Administration takes legal action against Mr. 

Assange, we should not lose sight of the broader context in which 

this episode has occurred. And I would like to note several of its 

significant features. First, we live in the most open society in the 

history of the world. Thanks in part to an unfettered press and the 

First Amendment, and thanks in part to laws like the Freedom of 

Information Act and the Presidential Records Act, we as a country 

are extremely well informed about what our government does in 

our name. 

Second, even as we are a wide open society, we have too much 

secrecy. Numerous observers across the political spectrum concur, 

as we here on the panel seem to be concurring today, that there 

is a great deal of mis- and overclassification within our national security bureaucracies. 

Third, owing in part to mis- and overclassification, the leaking of 

secret information to the press has become part of the normal informal process by which the American people are kept informed. A 

study by the Senate Intelligence Committee counted 147 disclosures of classified information that made their way into the Nation’s eight leading newspapers in one 6-month period alone. None 

of these leaks resulted in legal proceedings. 

Fourth, many leaks are innocuous and/or authorized. For example, Bob Woodward’s recent book, Obama’s Wars, is replete with 

code names and descriptions of classified programs. No one has 

pointed to any specific damage caused by this book, perhaps because the only damage done was to the integrity of the secrecy system itself. 

Fifth, some leaks are unauthorized and exceptionally damaging. 

In 2006, to take one example, The New York Times revealed details of a joint CIA Treasury program to monitor the movement of 

al Qaeda funds via the Belgium financial clearing house known as 

SWIFT. The Times published the story against the strenuous objections of leading government officials in both parties. 

49 

There is reason to believe that our ability to track the flow of al 

Qaeda and Taliban funds was severely hampered by the publication of a story that provided few discernible benefits to the public, 

if any. 

So I have sketched here a structure riddled with contradictions. 

On the one hand, we are a wide open society. On the other hand, 

we have too much secrecy. On the one hand, we have authorized 

and innocuous leaks of government secrets. On the other hand, we 

have unauthorized and highly dangerous leaks. 

And this is a very unsatisfactory state of affairs, and we have 

begun to pay a high price for it. And there are five things we need 

to do in my judgment, all of them interlinked. 

First, we need to devote more attention and resources to declassification to combating overclassification. Fewer secrets and a more 

rational secrecy policy will help us to preserve truly necessary secrets. 

Second, we need to make sure that legitimate whistleblowers 

have viable avenues other than the media to which they can turn. 

Third, we need to reestablish deterrents and prosecute those in 

government who violate their confidentiality agreements and pass 

secrets to the press or to an outfit like WikiLeaks. The Obama administration has been doing this with unprecedented energy. The 

last 24 months have witnessed four prosecutions of leakers, more 

than all previous presidencies combined. 

Fourth, we need, at the very least, to bring down the weight of 

public opprobrium on those in the media who disseminate vital secrets. In this body, the House of Representatives, contributed to 

that effort in 2006 when it passed a resolution reprimanding The 

New York Times and other news organizations for revealing the 

SWIFT monitoring program. 

And finally, we sometimes need to take legal action. We have 

never had a prosecution of a media outlet in our history, although 

we came close during World War II when The Chicago Tribune revealed that we had broken Japanese naval codes. Well, I believe 

that the First Amendment would not protect a news outlet that endangered the Nation as The Chicago Tribune did in 1942. Reasons 

of prudence suggest that such a prosecution should be a last resort 

used against the media outlet only in the face of reckless disregard 

for the public safety. 

WikiLeaks, whether it is or is not a news organization, has certainly exhibited such reckless disregard. Thanks in part to the 

march of technology, it has been able to launch what might be 

called LMDs, leaks of mass disclosure, leaks so massive in volume 

and so indiscriminate in what they convey that it becomes very difficult to assess the overall harm precisely because there are so 

many different ways in which that harm is occurring. 

The purpose of these leaks is to cripple our government, which 

Mr. Assange believes is a ‘‘authoritarian conspiracy’’. But the 

United States is not such a conspiracy. It is a democracy. And, as 

a democracy, it has every right to create its own laws concerning 

secrecy and to see to it that those laws are respected. And as a democracy it has every right to protect itself against those who would 

do it harm. 

Thank you very much for your attention. 

50 

[The prepared statement of Mr. Schoenfeld follows:] 

PREPARED STATEMENT OF GABRIEL SCHOENFELD


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Mr. CONYERS. Thank you so much, Mr. Gabriel Schoenfeld. 

Our next witness, Professor Steve Vladeck, is professor of law at 

American University. He was part of the legal team that successfully won Hamdan v. Rumsfeld, challenging former President 

George W. Bush’s use of military tribunals. He is well-known to the 

judiciary; and as the WikiLeaks controversy has unfolded, he has 


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further distinguished himself as one of the foremost national experts on the matter. 

We welcome you here. 

TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW, 

AMERICAN UNIVERSITY 

Mr. VLADECK. Thank you, Mr. Chairman. 

Chairman Conyers, Judge Gohmert, distinguished Members of 

the Committee, thank you very much for inviting me to participate 

in this important hearing. I hope my testimony won’t sound too 

much like a broken record. 

You know, testifying before the House Permanent Select Committee on Intelligence in 1979, Tony Lapham, who was then the 

general counsel of the CIA, describes the uncertainty surrounding 

the scope of the Espionage Act as ‘‘the worst of both worlds’’. As 

he explained, on the one hand, the laws stand idle and are not enforced at least in part because their meaning is so obscure; and, on 

the other hand, it is likely that the very obscurity of these laws 

serves to deter perfectly legitimate discussion and debate by persons who must be as unsure of their liabilities as I am unsure of 

their obligations. 

Whatever one’s views of WikiLeaks as an organization, of Julian 

Assange as an individual, or of public disclosures of classified information more generally, recent events have driven home Lapham’s 

central critique that the uncertainty surrounding this statute benefits no one and leaves many questions unanswered about who may 

be held liable and under what circumstances, for what types of conduct. 

In my testimony today I would like to briefly identify five distinct 

ways in which the Espionage Act as currently written creates problematic uncertainty and then, time permitting, suggest potential 

means of redressing these defects. 

First, as the title suggests and as Mr. Lowell testified, the Espionage Act of 1917 was designed and intended to deal with classic 

acts of espionage, which Black’s Law Dictionary defines as ‘‘the 

practice of using spies to collect information about what another 

government or company is doing or plans to do.’’ 

As such the plain text of the Act fails to require its specific intent 

either to harm the national security of the United States or benefit 

a foreign power. Instead, the Act requires only that the defendant 

know or have reason to believe that the wrongfully obtained or disclosed national defense information is to be used to the injury of 

the United States or to the advantage of any foreign power. 

No separate statute, as this Committee knows, deals with the 

specific and, in my view, distinct offense of disclosing national defense information in non-espionage cases. Thus, the government 

has traditionally been forced to shoehorn into the Espionage Act 

three distinct classes of cases that raise three distinct sets of 

issues: classic espionage, leaking, and the retention or redistribution of national defense information by private citizens. 

Again, whatever one’s view of the merits, I very much doubt that 

the Congress that drafted the Espionage Act in the midst of the 

First World War meant for it to cover each of these categories, let 

alone cover them equally. 

67 

Second, the Espionage Act does not focus solely on the initial 

party who wrongfully discloses national defense information but 

applies in its terms to anyone who knowingly disseminates, distributes, or even retains national defense information without immediately returning the material to the government officer authorized 

to possess it. In other words, the text of the Act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defense 

information that by that point is already in the public domain. So 

long as the putative defendant knows or has reason to believe that 

their conduct is unlawful they are violating the Act’s plain language regardless of their specific intent and notwithstanding the 

very real fact that by that point the proverbial cat is long since out 

of the bag. 

Third, and related, courts struggling with these first two defects 

have reached a series of disparate conclusions as to the requisite 

mens rea that individuals must have to violate the Act. Thus, and 

largely to obviate First Amendment concerns, Judge Ellis in the 

AIPAC case that Mr. Lowell testified about, read into the Espionage Act a second mens rea. As he explained, whereas the statute’s 

willfulness requirement obligates the government to prove that defendants know that disclosing documents could threaten national 

security, and that it is illegal, it leaves open the possibility that defendants could be convicted for these acts despite some salutary 

motive. By contrast, the reason to believe requirement that accompanies disclosures of information, as distinct from documents, requires the government to demonstrate the likelihood of the defendant’s bad faith purpose to either harm the United States or to aid 

a foreign government. 

Whether or not one can meaningfully distinguish between the 

disclosure of documents and the disclosure of information in the 

digital age, it is clear at the very least that nothing in the text of 

the statute speaks to the defendant’s bad faith. Nor is there precedent for the proposition that willfulness, which the Espionage Act 

does require, is even remotely akin to bad faith. In other words, 

courts have basically stumbled around to try to mesh the First 

Amendment concerns with the very vague and sweeping language 

of the statute. 

Fourth, and briefly, the potentially sweeping nature of the Espionage Act as currently written may inadvertently interfere with 

Federal whistleblower laws. For example, the Whistleblower Protection Act protects the public disclosure of a violation of any law, 

rule, or regulation only if such disclosure is not specifically prohibited by law and if such information is not specifically required by 

executive order to be secret in the interest of national defense or 

the conduct of foreign affairs. Similar language appears in most 

other Federal whistleblower statutes. 

I daresay the government would be reluctant to prosecute an individual who complied with Federal whistleblower laws, but I think 

that the statute could be amended to remove that within the realm 

of possibility. 

And, finally—I won’t even talk about this in detail, because it 

was already been mentioned by my colleagues—the problem of 

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tion? How do we actually attack the real elephant in the room 

when we are talking about the disclosure of things that perhaps 

should never have been kept secret in the first place? 

What is to be done. Perhaps unsurprisingly in light of my observations above and those of my colleagues, I would recommend three 

distinct sets of changes to the Espionage Act: 

First, introduce a clear and precise specific intent requirement 

that constrains the scope of the Espionage Act to cases where the 

defendant specifically intends the disclosure to harm national security and/or to benefit a foreign power. I think you have already 

heard this from Mr. Lowell. 

Second, create a separate, lesser offense for unauthorized disclosures and retention of classified information and specifically provide either that such a prohibition does or does not cover the public 

redistribution of such information, including by the press. If this 

Committee and body does decide to include press publication, my 

own view is that the First Amendment requires the availability of 

any number of affirmative defenses that the disclosure was in good 

faith; that the information was improperly classified; that the information was already in the public domain; and/or that the public 

good resulting from the disclosure outweighs the potential harm to 

national security. 

Third, and finally, include in both the Espionage Act and any 

new unauthorized disclosure statute an express exemption for any 

disclosure that is covered by an applicable Federal whistleblower 

statute. 

Mr. Chairman, in summation, writing in a Law Review article 

about 40 years ago, Hal Edgar and Benno Schmidt, two Columbia 

Law School professors, wrote that ‘‘we have lived since World War 

I in a state of benign indeterminacy about the rules of law governing defense secrets.’’ If anything, such benign indeterminacy has 

only become more pronounced in the last 40 years and, if recent 

events are any indication, increasingly less benign. 

Thank you for the invitation to testify. I look forward to your 

questions. 

[The prepared statement of Mr. Vladeck follows:] 

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PREPARED STATEMENT OF STEPHEN L. VLADECK


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Mr. CONYERS. Well, you have left us with some very large challenges, Professor Vladeck. We appreciate it very much. 

Our next witness is the Director of the National Security Archive 

at George Washington University, Professor Thomas Blanton. In 

the year 2000, the Archive won the George Polk award for ‘‘piercing 

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search of the truth and informing us all.’’ He is also the founding 

editorial board member of freedominfo.org, a network of international freedom of information advocates. 

I read your prepared statement with great enthusiasm, and we 

are happy to have you here today. 

TESTIMONY OF THOMAS S. BLANTON, DIRECTOR, NATIONAL 

SECURITY ARCHIVE, GEORGE WASHINGTON UNIVERSITY 

Mr. BLANTON. Mr. Chairman, it is a great honor for me, and 

Judge Gohmert and also to be in the middle of this extraordinary 

high-level tutorial in the Espionage Act and the Constitution. I feel 

like a grad student again; and it is a joy, actually. 

I also wanted to thank you, Mr. Chairman, for resurrecting my 

graveyard quote, that we have low fences around vast prairies of 

government secrets where we really need tall fences around small 

graveyards of the real secrets; and that is a core point I want to 

come back to today. 

I really have three points. One of them is the government always 

overreacts to leaks, always; and all you have to do is say the 

phrase ‘‘Watergate plumbers’’ and you know what I am talking 

about. 

Back then, they were discussing firebombing the Brookings Institution on the chance there might still be a copy of the Pentagon 

papers in there. Today, you are having debates on FOX news: Let’s 

do some targeted assassination attempts on Julian Assange. 

Well, I have to say G. Gordon Liddy would be right at home, and 

both is absurd. And the overreaction the government typically does 

is not to kill anybody or to firebomb something but to go right to 

the second major point I want to make today. They are going to 

classify more information. 

What I am worried about most is the backlash. I mean, in my 

prepared statement, I have got multiple examples of all the estimates, and they range from 50 percent to 90 percent, of what the 

problem of overclassification really amounts to. Governor Tom 

Kean, head of the 9/11 Commission, after looking at all of the al 

Qaeda intelligence that we gathered before 9/11, said, you know, 75 

percent of what I saw that was classified should not have been. 

And the Commission said we not only needed to do information 

sharing between the agencies, we had to do information sharing 

with the American people, because that is the only way we can 

really protect ourselves. What a great lesson that is. 

The system is so overwhelmed with the secrets that we can no 

longer really protect the real ones and we can’t let out the ones 

that would actually keep us all safer. 

And I think it is a mistake to try to see this as a balancing test. 

It is not a balance between openness and security. The findings of 

the 9/11 Commission were that more openness would have made us 

more secure. That is what you do an in open society to keep yourself safe. You are not safer in the dark. You don’t hide your 

vulnerabilities. You expose them and you fix them. That is how we 

proceed in America. 

The third point I just want to make about where we are today. 

We are in the middle of a syndrome that one senior government 

official I really respect holds all the clearances, does the audits, 

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pushes back against excessive secrecy, called it Wikimania. We are 

in the middle of Wikimania, and it is going to lead to so much more 

heat than light. Targeted assassination is only the most extreme 

case, but look at all the other proposals we have got on the table 

and the front burners to try to push back, to punish WikiLeaks, to 

push back against speech. 

I think the problem here is we have got to look at each one of 

those proposals and say, is that really going to address the problem? Is it going to reduce government secrecy or is it going to add 

to it? Is it going to make us more safe? Is it going to make us more 

free? And do that test. 

The Wikimania is really coming from a series of what in my 

statement I call Wikimyths. There has not been a documents 

dump. Everybody uses that phrase. There hasn’t been one. The less 

than 2,000 cables are on the public record today out of that big 

database, and the editors of Le Monde and the Guardian and New 

York Times say that WikiLeaks is consulting with them about 

what to publish, what to redact and doing the dialogue with government officials in a pretty extraordinary, responsible way. 

It is a very different posture, I should say, than WikiLeaks had 

even 6 or 8 months ago. I think the criticism they have gotten from 

journalists like us and from the public about endangering people’s 

lives in Afghanistan and elsewhere, believe it or not, I think they 

have actually heard it. 

There is no epidemic of leaks. In fact, all four of the big 

WikiLeak publicity spats have come from a single person as far as 

we know, Bradley Manning, a young private. 

So how do you solve the Bradley Manning problem? Well, you 

could do a pretty simple thing. The Defense Department has already done it. And here is a rational security policy. Just like you 

got two people to launch nuclear missiles, you have go two people 

to handle a communications manual that has codes in it, have two 

people before you can download something from a secure network. 

Pretty simple. That would have stopped Bradley Manning. Mormons send out two people as missionaries because that is how you 

have accountability, right? You don’t have solos. All right. 

There is no diplomatic meltdown from the WikiLeaks. I mean, 

there is a lot of heatedrhetoric. But Secretary of Defense Robert 

Gates who ought to know—he served every President in my lifetime, as far as I can tell—and, Mr. Chairman, you quoted his remarks. Yeah, it is awkward, yeah, it is embarrassing, but, no, it 

is not a meltdown. It will make the job harder for diplomats. 

Maybe somebody is going to have to be reassigned. But, you know, 

in the long run, it is probably in the American national security interest for more foreign governments to be more accountable to their 

own citizens for their diplomacy. It is probably in our national security interest for the King of Saudi Arabia to actually be on the 

public record a little more often and the China politburo members 

to get exposed every now and then. That might be a long-term goal 

of what American national security diplomacy ought to be about. 

And, finally, there is not a set of Wiki terrorists. I have heard 

that phrase batted around. They are not terrorists. 

I have to tell you, I wish every terrorist group in the world would 

write the U.S. ambassador in their local town, you know, days or 

76 

a week before they are about to launch something, and ask the ambassador, hey, would you help us, you know, make sure nobody innocent gets hurt? Would you really work with us? We would be 

glad to talk to you. 

And I understand why the ambassadors didn’t believe them. Because WikiLeaks said, oh, and, by the way, we will keep anything 

you say to us confidential. It is hard to square with the previous 

statements of WikiLeaks. 

But I wish every terrorist group would get into partnership with 

Le Monde and El Pais and the Guardian and the New York Times 

to assess what the damage might be, to redact their own documents, to put regulators on the bombs they drop. That would be 

a good thing. WikiLeaks is not terrorists. 

And so that brings me to my final real point and recommendation to this Committee and to the prosecutors across the river in 

Alexandria: Just restraint. I know you don’t usually have witnesses 

come up here and say, hey, let’s all go take a nap. But you know 

in sleep-deprived Washington we might could use a little more restraint. 

I would say leave the Espionage Act back in mothballs where it 

is right now and should stay. And in fact what we know is from 

some freedom of information requests there are still some classified 

documents from 1917 that will give the Espionage Act very good 

company. Don’t mess with it. Leave it alone. 

Our fundamental test should come out of Justice Stewart’s dicta 

in the Pentagon papers case and some wonderful articles that Jack 

Goldsmith has actually written in the last couple of years where 

he says, look, our problem is, you know, the fundamental cause of 

leaks is a sense of illegitimacy that is bred by excessive government secrecy. 

How do you address that? You reduce the secrecy. How do you 

deal with the legitimacy problem? You make sure as few secrets as 

possible are actually held and you protect those very strongly. 

So the test is, for all these proposals, legislative and otherwise, 

does it send a signal that will actually reduce government secrecy? 

Does it send a signal that we need maximum possible disclosure, 

in Stewart’s phrase, to have a system that actually has credibility 

and can protect the real secrets and where we can protect ourselves? 

I thank you, Mr. Chairman, for this opportunity to engage in this 

debate. I hope it will reduce the mania a little bit and cut through 

some of the myths. Thank you, sir. 

[The prepared statement of Mr. Blanton follows:] 

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PREPARED STATEMENT OF THOMAS S. BLANTON


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Mr. CONYERS. Thank you so much. 

Ralph Nader is well-known, a leading advocate, an author, a lawyer, a Presidential candidate. But Atlantic Monthly has named him 

one of the 100 most influential Americans in history, and I thought 

I would put that in the record so that more people than read the 

Atlantic Monthly would know about it. 

We welcome you once again to the Judiciary Committee, Ralph 

Nader. 

TESTIMONY OF RALPH NADER, 

LEGAL ADVOCATE AND AUTHOR 

Mr. NADER. Thank you, Mr. Chairman, Congressman Gohmert, 

and the other Members of the Committee for this important and 

timely hearing. A lot of interesting good points have just been 

made, and there is no point for redundancy. 

I would like to mention that we ought to look at the issue of government secrecy and government openness with historic cost benefit evaluation. I worked with Congressman John Moss in 1966 on 

the first Freedom of Information Act, and I saw the fervent opposition of the bureaucrats in the executive branch to what was then 

a rather modest piece of legislation. I then worked with him on 

strengthening 1974 Freedom of Information amendments which 

made our Freedom of Information Act arguably the best in the 

world, and I also saw the same opposition. I think that people like 

Daniel Patrick Moynihan in his book on government secrecy point 

out that one of the first victims of government secrecy is the Congress itself. 

The Congress repeatedly has been repudiated from getting the 

information in order to perform its constitutional responsibilities 

such as its warmaking power, its oversight subpoena power, its appropriations deliberations, and many others. Bruce Fein has decried this deprivation of information by the executive branch, visa-vis Congress, as a principal cause of weakening what is supposed 

to be the most powerful branch of our government. 

If you look at the historical record, the benefits of disclosure 

vastly outweigh the risks that come from disclosure. Wars could 

have been prevented if the American people knew what was going 

on in the Spanish American war, in World War II, in the Tonkin 

Gulf resolution, if the American people knew was going on before 

the invasion of Iraq with the lies, the cover ups, the distortions 

that now have been historically documented by the Bush administration, including Richard Clarke, the antiterrorism counselor to 

President Bush, among many. 

What is fascinating about this WikiLeaks controversy is that we 

have to avoid it becoming a vast distraction, focusing on these socalled leaks instead of focusing on the abysmal lack of security 

safeguards by the executive branch of the U.S. Government and 

making those who set up this porous system or who allowed it to 

be penetrated accountable. 

The distraction also is away from the lack of account for executive branch officials who suppress information. How many times 

have you seen those people prosecuted at the highest levels and the 

middle levels of government? The suppression of information has 

led to far more loss of life, jeopardization of American security, and 

88 

all the other consequences that are now being attributedto 

WikiLeaks and Julian Assange. 

A million Iraqis have died as a result of the invasion, 5,000 U.S. 

soldiers, 100,000 sick and injured and traumatized, a country 

blown apart, more violent opponents to our country, more national 

insecurity. 

We have to be very careful here that the Congress does not stampede itself by executive branch pressure to repeat the PATRIOT 

Act debacle when this Committee issued a pretty sound piece of 

legislation with hearings, bipartisan, and then was stampeded 

along with the rest of the Congress by Karl Rove and George W. 

Bush with this notorious PATRIOT Act. Stampeded legislation always comes back to haunt its authors. 

Furthermore, I am very disturbed by the reaction of Attorney 

General Holder. I think he is reacting to political pressure, and he 

is starting to fix the law to meet the enforcement policy, and that 

is very dangerous. He said the other day, ‘‘The national security of 

the United States has been put at risk, the lives of the people who 

work for the American people have been put at risk, the American 

people themselves have been put at risk by these actions that I believe arrogant, misguided, and ultimately not helpful in any way.’’ 

Referring to the WikiLeak disclosures via the New York Times and 

the Guardian and other newspapers. 

Those very words could apply to the Bush administration and the 

Obama administration’s military and foreign policy, that they 

would put us in greater risk. And it is very important for us, especially represented by Congress, that the penchant for secrecy is not 

nourished further by the WikiLeaks events which are going to unfold in greater magnitude in the coming weeks to leave millions of 

citizens in our country with a debilitating dictatorial vulnerability 

to further concentration of authoritarian power in the executive 

branch. 

Floyd Abrams, not known as a radical, arguably the leading First 

Amendment practitioner in the country, said, in responding to Senator Lieberman’s precipitous urging for Holder to indict Assange, 

he said, ‘‘I’d say the potential risks outweigh the benefits of prosecution. I think the instinct to prosecute is rational, and I don’t 

mean to criticize the government for giving it serious consideration, 

but at the end of the day I think it could do more harm to the national security properly understood than letting it go.’’ 

Jefferson and Madison had it right. Information is the currency 

of democracy, freedom of speech is inviable, and I would add that 

secrecy is the cancer, the destroyer of democracy. 

We have overwhelming examples, some of which were in your 

statement, Mr. Chairman, of what happens when information paid 

for by the taxpayer, reflective of the public’s right to know, is kept 

secret. If you take all of the present and probable future disclosures 

under the WikiLeaks initiative, the vast majority should never 

have been classified, the vast majority are reprehensible use of people employing taxpayer dollars, the vast majority should have been 

disclosed, if not never stated, for the benefit of the American people 

to hold their government accountable. 

Forbes magazine in a cover story in its edition December 20th 

outlines in an interview with Julian Assange that early next year 

89 

the beginning of the disclosure of corporate documents will start. 

Early next year, Forbes said, ‘‘A major American bank will suddenly find itself turned inside out. Tens of thousands of its internal 

documents will be exposed on WikiLeaks.org with no polite request 

for executives’ response or other forewarnings.’’ 

Now the importance of that is the danger of the following coalition appearing in the coming months. You have the government bureaucrats who transcend political parties, the government bureaucrats and the corporate executives who want to destroy the provision for whistleblower protection in the new Financial Reform Act 

as we speak, that they band together in order to focus on the 

WikiLeaks and try to stampede Congress and perhaps public opinion into enacting legislation that will further stifle the right of the 

American people to know and further enhance those who believe 

that the few can decide for the many and that concentrated power 

in the executive branch can make a mockery out of the constitutional authority reposited in the U.S. Congress. 

We hear a lot about the information age, and we hear a lot about 

what it is supposed to do for us. But the risk in this WikiLeaks’ 

overreaction to control of the Internet and to damaging a dissemination of compilation and access to information worldwide is very, 

very serious. That is only one of the consequences that can occur 

if the Congress allows itself to overreact and if the press does not 

take a measured view and hold to account those who are calling 

for executive assassinations, for repressions, for the detonation of 

due process against people who have received information from internal government sources. 

I think the proper range of government security is now being deliberated in the executive branch, but it needs to be stimulated by 

Congress. 

At DARPA, Peter Zatko and his group is busily working on a 

technical fix so that this kind of disclosure never happens again. 

Many people think that that cannot be done, that the genie of the 

Internet is out of the bottle. 

But it does seem to me that we should be very careful in conclusion in not developing a bill of attainder mind-set, if I may use that 

metaphor. If it is okay for Obama administration officials to conspire or collude with Bob Woodward, to use a non-normative intonation of those words, and leak cables and all kinds of secret information and do it with impunity with a reporter who then puts it 

in a book, it does seem that we are on our way not for developing 

equal protection policy but for the kind of discriminating policy 

that will make our legal system not reliable and subject to the distortions of repeated judicial decisions. 

Mr. COBLE. Mr. Chairman, I think—— 

Mr. NADER. I will leave you with that, Mr. Chairman. Thank you 

very much. 

Mr. COBLE. Well, okay, a moot point. 

Mr. CONYERS. Thank you, Ralph Nader; and my deep gratitude 

to all seven of you. This may, in some ways, be one of the finest 

discussions the Committee has had in the 111th Congress. 

I am going to take my time, instead of directing specific questions, to ask all of you or any of you, now that you have heard each 

other, that you may have a reflection or while you have been here 

90 

in the hearing you thought of something you might like to add to 

your statement already, to have this opportunity to do so now. 

Mr. LOWELL. Mr. Chairman, one thing I would like to respond to 

briefly is the point that my colleague to the left made. 

I understand that we are grappling to try to figure out where the 

First Amendment applies and who is a journalist and who isn’t. 

And I know many have said WikiLeaks and Assange are not because they, to use the phrase, dump data or they don’t perform the 

function of being selective.I think that is a dangerous slope to be 

standing on, because it puts in the editorial room individual prosecutors who will make the decision as to who is a journalist and 

who isn’t. And to individual courts all over the place as to what deserves First Amendment protection and what does not. And it 

doesn’t distinguish well between what WikiLeaks has done and 

when a more traditional media outlet posts a document in toto on 

its Web site. So it makes for, I believe, a difficulty. And I think it 

is one that cannot be legislated. It has to be decided in another 

fashion. 

But I do want quickly to point out that it is easy to say in American history the function of gathering information from the government by whatever source and disseminating it through the public 

is classic journalism. 

Mr. CONYERS. Yes, Mr. Wainstein. 

Mr. WAINSTEIN. Thank you, Mr. Chairman. 

I appreciate Mr. Lowell’s point, that whatever you ask anybody, 

be it a court or a prosecutor, to try to distinguish between one person who is a journalist and another person who iisn’t a journalist 

is a dangerous slope to be on. Two responses to that. 

One is, we are on that slope right now. That is what the law allows as it stands; and Mr. Lowell made that point very well, that 

the current law allows the government to prosecute both the recipient of the information as well as the leaker of the information. 

The second point, though, is if you assume that there is ever 

going to be a case where a reporter or a person in the position of 

the news, the recipient of the information, can be charged, then 

that line has to be drawn. 

So go back to the Chicago Tribune cause, which is sort of the 

classic. 1942, the Tribune actually reports that we have broken 

Japanese code. If the Japanese had paid attention to it, millions of 

lives, including many of our parents, might have been lost. They 

didn’t fortunately, and they ended up not prosecuting the case. 

But I think many of us or most of us agree that that is a case 

that is so egregious that that newspaper or that reporter should or 

could be charged. If you assume that there is such a case and 

somewhere a line has to be drawn, my point would be is 

WikiLeaks, aside from whether you want to call them a newspaper 

or a news organization or not, is their mission and their mode of 

conduct sufficiently divergent from a traditional news organization, 

the type that the First Amendment was designed to protect, that 

it falls beyond that line? So that it could be prosecuted without the 

First Amendment standing in the way of its prosecution and without other news organizations living in fear—the news organizations 

that pursue the traditional purpose of news and pursue the traditional modes of conduct of news gatherers and reporters—not live 

91 

in fear that, because WikiLeaks got prosecuted, they are going to 

be prosecuted and, therefore, their actions wouldn’t be chilled. That 

is the argument. 

While I agree with Mr. Lowell that any definitional distinction 

is difficult and can be dangerous, it is where we are right now; and 

I think WikiLeaks—an argument can be made that WikiLeaks is 

exceptional enough a situation that a line could be drawn without 

such damage to the First Amendment. 

Mr. SCHOENFELD. Mr. Chairman, I would also compare this case 

to the Pentagon papers case where the Times spent a great deal 

of effort redacting the documents before it published them, which 

is not what is taking place here. This is a very different kind of 

enterprise. And, of course, in that case, that was a prior restraint 

case; and the Supreme Court ruled that it was not—the standard 

had not been met for suppressing that information. 

It is also notable that five of the nine Justices said that if the 

case came to them after publication, as a prosecution they would 

strongly consider punishing the Times, prosecuting the Times, upholding the conviction of the Times if the information was of the 

character that was prescribed. So I think that a prosecution of 

WikiLeaks, just judging by the very scant law we have here, the 

Pentagon papers case, is a viable possibility. 

Mr. CONYERS. Yes, Professor Stone. 

Mr. STONE. Thank you, Mr. Chairman. 

On the discussion about whether WikiLeaks is part of the press 

or whatever, I think that is not a fruitless line of inquiry. I agree 

with Mr. Lowell that drawing a line along those directions is simply not going to be coherent. 

But, also, in terms of summary of things, I want to come back 

to how clear it is from this discussion that the starting point is the 

classification system, that the bottom line is there cannot be any 

coherent solution to these issues without going back and examining 

the classification process and standards. Unless we do refocus what 

has happened—because, essentially, over the last 70, 80, 90 years, 

we have run amok with secrecy; and that has created the problems 

that we have seen here. It has denied the Congress access to critical information, it has denied the courts access to critical information, and it has denied American people access to critical information. Unless and until we go back and fix that, all of this is spinning wheels. I think that is really the place where this Committee 

and where Congress has to start its inquiry. 

Mr. CONYERS. Professor Blanton and then Ralph Nader. 

Mr. BLANTON. Mr. Chairman, I just wanted to, at my own peril, 

try to correct Mr. Schoenfeld’s analysis of what is going on here. 

Because, in fact, a great deal of redaction is going on here on a 

daily basis. We have extensive descriptions of it in the editors’ 

notes by all the media outlets who are publishing stories on this 

matter, and they have testified to the fact that WikiLeaks is following their lead after their reporters engage in exactly that discussion with the government about what the risk is, which is a discussion the Chicago Tribune did not have in its case and was its 

own, I think, journalistic failure, I would argue. So a great deal of 

redaction is taking place. 

92 

And I would just point, also, to a certain trajectory; and I suspect 

that Mr. Assange’s lawyers have maybe read some of Mr. 

Wainstein’s testimony maybe in advance of this hearing, because 

they are doing some very smart things to eliminate exactly the distinctions that you are trying to draw. They are asking the government for feedback on the documents. They are taking care to follow 

the lead of the media. They are actually doing the publication in 

concert with major media organizations who have the capacity that 

they do not have to do reporting. In fact, they are looking more and 

more like a media organization. 

But I will even step back one from that. Because my reading of 

the First Amendment as a layperson is that it also protects 

speech—and this goes to Professor Stone’s point—not only freedom 

of the press but speech. And it seems to me that you will run into 

really difficult problems not only on the media’s slippery slope but 

on speech. It may go to motivation. It may go to this fact of overclassification. 

I pointed out in my testimony in the written statement that one 

of the most striking things about the Wiki cables that are on the 

record is the fact that so many of the Confidential and Secret ones 

shouldn’t have been classified to begin with. So you are going to 

be in a real mess, I think, in any kind of prosecution. 

I will leave it there. 

Mr. CONYERS. Schoenfeld, you are entitled to a brief response. 

Mr. SCHOENFELD. Well, I found myself in agreement with many 

things that Mr. Blanton said in his statement, but one thing I 

strenuously disagreed with is the notion that WikiLeaks is responsible in what it is done. It may have indeed redacted some of the 

documents in the most recent disclosures, but we have had the two 

previous dumps of large numbers of documents, and I would say 

2,000 cables referred to in my judgment is a large number of documents. And these were documents that were also about military operations, field reports. 

And I remember congressmen have referred to Secretary Gate’s 

remarks, missing the damage that was done by the latest disclosures. If one looks back at what his remarks were this past summer, he said that the lives of American soldiers and of Afghan civilians who have cooperated with our efforts there were placed at 

risk. Chairman of the Joint Chiefs of Staff, Admiral Mullen, has 

said that there is blood on the hands of WikiLeaks. I think these 

views are entitled to a great deal of respect. The notion that 

WikiLeaks is responsible seems to me unsupportable. 

Mr. CONYERS. Ralph Nader? 

Mr. NADER. I would like to submit, Mr. Chairman, with your permission, for the record an article, a short article, in the National 

Journal called, Breaking the Ranks. Ron Paul vigorously defends 

WikiLeaks, where he asks his colleagues which events cause more 

deaths, ‘‘lying us into war or the release of the WikiLeak papers.’’ 

I would like to also introduce in the record Harvard Law Professor Jack Goldsmith, who came out of the Bush administration, 

Seven Thoughts on WikiLeaks, including the description of top 

Obama administration officials’ cooperation with Bob Woodward releasing Top Secret programs, code names, documents, meetings, 

and the like. 

93 

*The material referred to was not received by the Committee at the time of the printing of 

this hearing. 

I would also like to include this full page ad in the New York 

Times today by almost 100 Australians entitled WikiLeaks are Not 

Terrorists. And it is a rather sober and poignant appeal to Australia’s ally, the United States, to cool it. 

I would also like to include in the record the full article in Forbes 

magazine on the forthcoming disclosures in the hundreds of thousands of documents of corporate crimes, corporate abuses, corporate 

coverups that Julian Assange has assured Forbes would be forthcoming. 

And just to reduce our ethnocentrism, Mr. Chairman, I would 

like to note that WikiLeaks is not just a United States’ issue, that 

there are people in Peru, Kenya, Australia, Iceland, Switzerland, 

and other countries who have benefited from WikiLeaks’ disclosures of rampant corruption and injustice in those countries. 

Mr. CONYERS. Without objection, your several documents will be 

accepted into the record.* 

We have a record vote, and so we will take a brief recess and 

then resume the questioning of the Members. Thank you for your 

patience. 

[Recess.] 

Mr. CONYERS. The Committee will come to order. Before yielding 

to Bob Goodlatte, I wanted to have just 2 minutes further for any 

of you who wanted to add to the discussion we were in mutually 

in terms of exchanging ideas and views on comments made by 

other panelists. 

Mr. BLANTON. Mr. Chairman, I think we came to complete and 

total consensus during that point. 

Mr. CONYERS. That is right. As my boy says to me, yeah, right, 

dad. 

Mr. BLANTON. Yeah, right. Anybody want to weigh in? I am looking at Ken, because we had the best argument during the break. 

Mr. WAINSTEIN. That is right. But we kissed and made up. I will 

jump in on just one point, which is everybody has talked about the 

problem of overclassification. And I just wanted to address that. I 

agree that is the problem. No question about it. I actually applaud 

the President for his having undertaken an effort to review the 

classification processes in place and try to get more transparency 

and reduce the classification of information. 

I guess my point would be this, though. That is a problem. And 

it is a problem in terms of the reality because it chokes off the flow 

of information that should go out to the public, information that 

truly isn’t sensitive, but also it is a problem of credibility, because 

the government has less credibility when it says these are our secrets and only some fraction of them really are. But keep in mind 

that is one issue. And that doesn’t completely solve this problem. 

So while, yes, we need to address that, the question I think that 

is out there now that has been posed by WikiLeaks is okay, now 

what do we do about organizations out there whose sole purpose 

is to try to get secrets? So I think of this like maybe a football 

team. A defensive coach on a football team is trying hard to—it 

doesn’t defend well against the run. Well, you don’t just fix that 

94 

just by going out and getting a good defensive end, you also probably need a good middle linebacker. So if you look at dealing with 

overclassification as your defensive end, that is fine, that helps 

partly. But you are also going to need a good linebacker to try to 

stop the run. 

So my point is we also need to deal with—what do we do with 

these organizations that are kind of new out there on the scene like 

WikiLeaks that are doing their best to get our secrets and put 

them out there? 

Mr. CONYERS. Nothing like a sports analogy when we are in complex matters. I would like now to turn to our good friend Bob Goodlatte, who is a senior Member of this Committee, and serves with 

great distinction. 

Mr. GOODLATTE. Thank you, Mr. Chairman, and thank you for 

holding this hearing. I think this is a very important subject, and 

this panel has been excellent in offering us a number of perspectives about this. I don’t know that we will get quite the unity that 

Mr. Blanton claimed, but I nonetheless think there is probably increasing agreement on what are the problems and what are the 

limited solutions that we have. I would say, first of all, that the 

lack of security safeguards for protecting classified material is 

stunningly poor. And this problem is enhanced by the use of modern technology that spreads it around in places where I am sure 

many of the people who want something kept secret don’t even 

know who is responsible for keeping the secret for them. And that 

is clearly the case with one member of the U.S. Army having access 

to, and apparently turning over, hundreds of thousands of documents. 

Secondly, I second those who have called for greater openness. 

There are without a doubt many, many things that are classified 

that should not be. And we have a problem I think with out of control expansion of what are being deemed secrets and for reasons 

that are not legitimate in terms of somebody wanting to do a little 

CYA instead of actually really protecting the national interests of 

the United States. 

Finally, we want to make sure that we are not suppressing information that should be made public. Nonetheless, it causes great 

concern to me that any outside organization would be put in the 

position of being the arbiter of what amongst hundreds of thousands of documents should be deemed secret, and therefore not put 

up on the Internet, and what should not. They don’t have the professional ability do that. They don’t know the far-reaching consequences that this will have on people’s lives or on the national 

interests of this country. Nor do I get the impression that the leaders of this organization indeed care about what are the national interests of the United States. So we have to address this, first and 

foremost, by figuring out how to safeguard the things that are truly 

secret and release the things ourselves that we should be making 

public, should be disclosing. 

So, I guess first my question, I will go to Mr. Wainstein first, but 

please anybody else join in, in terms of talking about how we 

change the classification process, what can we in the Congress do 

legislatively? It seems to me this is primarily a function of the executive branch. But it very much concerns me that the executive 

95 

branch has abused this power. And we need to change it. But without some standard, some measure of how these things are classified, what would you recommend that the Congress do to reassert 

our authority and get the classification process brought under control? 

Mr. WAINSTEIN. I appreciate the question, sir. I guess as you 

pointed out, the first thing to keep in mind is classification is within the prerogative of the executive. So the folks in the executive 

branch, the ones who decide what should be classified and what 

shouldn’t, and it all sort of boils down to the executive’s responsibility to protect national security. That doesn’t mean, however, that 

Congress doesn’t have a role. In fact, I think we were talking about 

this on the break, I think if there is a silver lining to this issue 

coming up now about WikiLeaks, it is that not only might there be 

some salutary changes to the Espionage Act, and not only does it, 

I think, heighten people’s awareness of this tension between security and openness, but it also I think might heighten people’s 

awareness of the fact that there really is overclassification. And 

Congress I think can play an important role in emphasizing how 

important it is to the executive branch that overclassification be 

gotten under control, especially if the executive branch wants some 

legislation out of the Congress as it relates to the Espionage Act, 

let’s say. 

The President, as I said, one of his first acts, I think it was early 

on in the spring last year, was to set up this task force and issue 

an Executive order covering overclassification. So my sense is there 

is a sincere effort underway. Keep in mind, however, that while 

there are, I think, the occasional—— 

Mr. GOODLATTE. Let me interrupt you because I have got a limited amount of time, and several people might want to comment. 

But if you have specific ideas about things that Congress ought do 

in this regard, we would welcome them. And I would ask any other 

member of the panel. 

Yes, Mr. Stone. 

Mr. STONE. Yeah, I don’t accept this notion that this is in the executive branch’s prerogative. It seems to me that the way in which 

the classification—— 

Mr. GOODLATTE. I agree that it is not, but I am looking for practical ways to solve the problem. I don’t want to argue the point. If 

you have a suggestion for us to take legislatively, or through appropriations, or whatever, that would help us to reassert our authority 

in this area, we are interested. I would bet that is on a bipartisan 

basis. 

Mr. STONE. I would say for one that legislation that provided, for 

instance, that no document or information may be classified unless 

a judgment is made that the harm of disclosure outweighs—that 

the harm of disclosure outweighs the benefits of disclosure, as a 

statutory matter, that would then say that no one could be punished for revealing information that is misclassified under that 

standard would go a long way to clarifying what the classification 

standards are. 

Mr. GOODLATTE. What if there seems to be some willfulness and 

deliberate intention to misclassify information that should be classified? 

96 

Mr. STONE. Make it a crime. 

Mr. GOODLATTE. Okay. 

Mr. LOWELL. Congressman, I have two practical things if you 

consider any amendments to the bill. 

Mr. GOODLATTE. Yes, sir. 

Mr. LOWELL. First, I have already stated, which is to make sure 

that we distinguish among the various offenses so that the mishandling of properly classified information is included. Therefore, 

there is a distinguishing between the various forms of conduct. So 

Congress is basically telling the executive branch you are not going 

to be able to prosecute people at the same level for the various 

kinds of offenses. But the second is to do what the case law often 

says, be clear that there can be a defense given the intent of the 

potential criminal defendant for raising the fact something was improperly classified in the first instance. 

Mr. GOODLATTE. All right. Anyone else? Mr. Nader? 

Mr. NADER. Just a couple of suggestions, Congressman. One is 

years ago I would say the U.S. Government should declassify anything it knows that the Soviets know so that you don’t keep it from 

the American people. And they knew a lot about what the Soviets 

knew. But it gets to my point that one of the major players in the 

whole classification issue is the Congress itself. And when the Congress allows itself to be stratified between the intelligence committees getting classified information and no one else in Congress getting it, that is a way the executive branch co-opts the congressional 

role and increases the arbitrary classification discretion of the executive branch. So that is something to look into. 

And the second is that we should look back at what has been disclosed that was classified to educate ourselves to be able to more 

precisely respond to your question. Because there is just so many 

things that have been declassified later or leaked that were absurd 

to being classified. And that is a good tutorial to develop the kind 

of nuance that your question involves. 

Mr. GOODLATTE. Thank you. Mr. Blanton? 

Mr. BLANTON. Congress has an extraordinary track record in 

pushing back against overclassification. The greatest success I 

would say in the last 15 years has been the Nazi War Crimes Act 

that pushed out millions of pages of documents that shouldn’t have 

been kept secret all of those years that showed how we had hired 

and sheltered Nazis in our own country. Congress ordered that, 

Congress built the interagency working group that ran it. You 

should apply the same standards that were in that statute to all 

historical records, anything more than 25 years old, which under 

the Executive order is supposed to be treated differently. Apply the 

Nazi process. Put an interagency working group with some oomph 

behind it and congressional oversight behind it to make it work. 

You could break loose that huge backlog of those old secrets that 

is one of the hugest, biggest credibility problems of the current system. You could make a huge difference. 

You could empower the Public Interest Declassification Board, 

that has appointees from the executive and the legislative branch, 

to not just make recommendations for changing the system, but 

really even order the release. You could provide new funding for 

the National Declassification Center, which is out at the National 

97 

Archives, just started in May. Real good idea. They hired a career 

CIA employee to help oversee it, but they are facing backlogs of 400 

million pages of stuff that should have been out 30 years ago. They 

can’t even begin to get their arms around it. A little oversight there 

I think would really help. 

And I think finally, to pick up on Ralph Nader’s comment, currently the executive branch treats requests for information from 

Congress, only the Chairs of Committees are treated as constitutional requests for information. If you are a Member, not a Chair, 

your request for information is treated as if it was a Freedom of 

Information request. So join the line that I am in. All right? I am 

sorry, you have got a higher constitutional duty than I do. And you 

ought to have the right, all Members of Congress ought to be treated the way Chairs of the Committees are treated today. 

Mr. GOODLATTE. Mr. Vladeck. 

Mr. VLADECK. Just real quickly, I echo everything Mr. Blanton 

just said. I would just point you to one more example of Congress 

taking an active role in this area, which is the Atomic Energy Act 

of 1954. So here we are not talking about historical records, we are 

talking about I daresay what we would all agree are some of our 

most important national security secrets. And Congress did not 

leave it to the Executive, Congress actually provided detailed statutory procedures to be followed, and indeed to be punished in the 

breach. 

Mr. GOODLATTE. Thank you. These are all very good suggestions. 

One other point. The allegation has been made, and I again don’t 

know the truth of this, that WikiLeaks is an organization that has 

not only released the information on the Internet, but that has 

been engaged in the solicitation, the facilitation, maybe even the 

payment of—I don’t know—pay for information or pay to facilitate 

the acquisition of the information. But do any of you have any 

thoughts on whether there is a need to change the law in this area, 

or is there adequate law right now against what most people would 

agree would cross the line between reporting and espionage? 

Mr. NADER. First of all, there is a lot more we need to know, 

Congressman—— 

Mr. GOODLATTE. I agree with that. 

Mr. NADER [continuing]. That we don’t know. But for example, 

obviously Amazon, Visa, MasterCard, with their denial of service in 

recent weeks, of WikiLeaks, was pressured by the U.S. Government. The U.S. Government did not say cut off the New York 

Times or the Washington Post. And that is a tip of an iceberg—— 

Mr. GOODLATTE. I appreciate that that is an issue, Mr. Nader, 

but it doesn’t answer my question, which I have already exceeded 

the time. Does anybody have any comments on the issue of whether or not we need to strengthen our laws regarding the kind of 

things that were done or alleged to have been done by WikiLeaks 

to acquire this information or any other information from the government? And I would contrast from what they acquire from a corporation. 

Mr. WAINSTEIN. If I may, Mr. Goodlatte, Congressman Goodlatte. 

Mr. GOODLATTE. Yes, Mr. Wainstein. 

Mr. WAINSTEIN. I don’t know whether WikiLeaks did go about 

trying to procure or pay for the information. But if there was any 

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complicity between WikiLeaks and the person who actually pulled 

the information out of the government, then WikiLeaks could be 

charged as an aider and abettor, or a conspirator of the leaker. 

Then WikiLeaks would not enjoy whatever additional First Amendment protections they have as a news organization. Rather, they 

are charged as a conspirator or aider or abettor of the person who 

was the leaker. That would be an easier case to make because then 

they would be charged like the leaker and like the four other leak 

defendants that have been charged by the Obama administration 

under the Espionage Act in a way that I think is much less problematic to people because they are not going to be charged as a 

press organization, rather as someone who is complicit with leaking. 

Mr. GOODLATTE. That is under current law, correct? Mr. Vladeck. 

Mr. VLADECK. I agree with that. All I would add is it may not 

be as problematic. It would certainly be as unprecedented. The Espionage Act has not previously been used to my knowledge to prosecute someone on an inchoate theory of liability as an aider, abettor, acoconspirator, et cetera. The text of the statute may support 

it. I do think we would still wade into some of the issues you heard 

us describe this morning about applying this antiquated statute to 

this novel theory. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you very much, Mr. Goodlatte. We now 

turn to the gentleman from Virginia, Chairman of the Subcommittee on Crime, Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. And thank you for calling 

this hearing. One of the problems in passing criminal laws is there 

are a lot of challenges. If we pass a criminal law, we expect it to 

be challenged on its constitutionality, so it has to be consistent 

with precedent. And we have the Pentagon Papers, which alerts us 

to the fact that anything we do in this area is going to be problematic. Also, the law has to be precise. It can’t be subjective after the 

fact, well, in this case I think it is bad enough to prosecute. The 

conduct to be proscribed has to be precise. 

I am inclined to think that what happened in the WikiLeaks situation ought to be illegal, but I think we have a consensus on the 

panel, if nothing else, that we ought to take our time and get this 

thing done right. Let me just ask, I am going to start a couple of 

issues and just ask everybody to kind of respond to them, one of 

which my colleague from Virginia just talked about, and that is 

should it matter whether you helped to obtain the information or 

you got it slipped under the door, you didn’t have anything to do 

with it in terms of your publication? And does it matter if you 

knew full well that it was classified? And should it make a difference that it should or should not have been classified? 

And second, we have heard a lot about the intent to harm or 

whether it actually harms. That is going to have a real problem 

with practicality in criminal law. Because whether or not the leak 

actually harmed, I mean if you did something to sabotage the Iraqi 

war and we started that debate, there would be a lot of people who 

would conclude that you did more good than harm, although obviously if you lose that debate you have committed a crime. And 

whether or not even though it did harm, you didn’t intend for it 

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to harm. Should that be a defense? And the fact that you redacted 

some of it but didn’t redact all of it, should that help you or not? 

And part of this is from a practicality point of view, you have been 

arrested for publishing the material and you get an opportunity to 

debate the Iraqi war before a jury, and if you win the debate you 

are not guilty? If you lose the debate you are guilty? If you are 

lucky enough to be in one jurisdiction where they hate the Iraqi 

war you are in good shape leaking the material. If you get stuck 

in another jurisdiction you are in deep trouble. Same crime, different jurisdictions. 

From just a practicality point of view, can you talk about some 

of these kind of issues? And I just yield the panel the balance of 

my time. 

Mr. LOWELL. Congressman, let me give you quick answers to 

four, and hopefully start the discussion back about the experience 

about these cases. Theoretically, whether or not a media organization or a third-party are protected either by free speech or free 

press or petitioning the government changes the dynamic when 

that organization is, as you or others have said, or Mr. Goodlatte 

has said, complicit in the theft or the leak on the front end. The 

problem, again, is the slope. Press people cajole, encourage, flatter, 

talk to people in the government all the time. They are actively engaged in trying to find out that which the government does not 

want to disclose. They are involved. They are not taking out a National Enquirer check of a thousand dollars and paying for the information. We think that is a clearer line, although under the First 

Amendment I am not sure it is. But where do you draw the line 

then when a journalist is doing her or his job very well and is figuring out ways to cajole somebody to say that which they are trying not to? 

So theoretically, I think yes, but I think practically no. I think 

the issue of whether the media or the third-party or the protected 

entity knows something is classified, well, the present law doesn’t 

make the disclosure of classified information the crime. It makes 

disclosure of what is called information relating to the national defense a crime. And we are now seeing with classified overclassification that the fact that it is classified may give a presumption that 

there is a potential danger in its release. But it is the beginning 

of the conversation not, and I don’t think that is going to be a 

meaningful distinction today. When you redraw this law someday, 

it may be one, as again Congressman Goodlatte was saying, how 

can you prevent overclassification by making sure there is a defense, for example, that if something is improperly classified? So 

therefore, knowledge that it is classified is not really going to be 

dispositive. 

The intent is very difficult. So you are right, there shouldn’t ever 

be a law that says whether or not the outcome was what you intended; that is, I intended to submarine the policy of Iraq, consequently I did what I did and it didn’t submarine the policy. Or 

in retrospect, it was better to do than not do. It has to be at the 

front end. It has to be intent. Was your intent to. 

Now, that is, as you know, the same in every criminal case. Trying to divine a defendant’s intent by whatever their direct statements or circumstantial evidence are is going to be the challenge 

100 

even in a classification kind of a case. So again, somebody saying 

to the government, gee, should I redact? Somebody who meets in 

public, somebody who does things overtly as opposed to somebody 

who wears a disguise and is dealing in drop boxes in the middle 

of the park. You can tell the difference between what somebody’s 

intent is by their behavior. 

And finally, you raised a really excellent last point—they were 

all excellent, but this one as a trial lawyer—when you are divining 

somebody’s intent and you are saying I felt like I needed to expose 

the fact that there were no weapons of mass destruction, that plays 

differently to a jury in Alexandria, Virginia, than it might in Washington, D.C., than it might in some other place in the country. And 

that is why, among other reasons, at least the presumption is so 

many of these cases are brought in the Eastern District of Virginia, 

or at least the prosecutors believe they have a more sympathetic 

jury. 

Mr. VLADECK. Could I just add briefly? Congressman, you also 

raised the specter of putting the jury in the position of deciding 

whether something was rightly classified or not. And I think it is 

important to keep in mind that if Congress were to add an improper classification defense into any revision of the law, you are 

still putting an incredibly high burden on the putative defendant 

who has taken quite a substantial risk if he really thinks that at 

the end of the day his freedom, whether he is going to go to jail 

for 25, 30 years, depends on his ability to convince a jury that 

something was wrongly classified. So I think, you know, that is not 

a legal argument, but I do think that that puts a pretty heavy 

thumb on the scale of why that would not open the door to massive 

leaks by individuals who thought that things were wrongly classified. Those are pretty severe consequences to take such a long shot 

on. 

Mr. SCHOENFELD. Congressman, I would just add to what my colleagues have said. A number of them have suggested we should 

alter the law to have an intent to injure. And this was one of your 

points. I think there is reason to believe that would open the floodgates for leakers, that there are many salutary reasons for leaking, 

but there could be considerable disagreement about what actually 

is salutary. The current law, which demands you have reason to 

believe it could injure the United States, seems to capture behavior 

that we would really like to keep from occurring, keep genuine secrets secret. 

Mr. SCOTT. What burden of proof would you have if somebody 

honestly believed that this was good for the country, although some 

juries would conclude it is bad for the country? I mean do you have 

to prove—would the prosecution have to prove beyond a reasonable 

doubt that he did not believe that what he was doing was the right 

thing? 

Mr. SCHOENFELD. I am not sure of the answer to that. 

Mr. STONE. I think it is important here again to distinguish between—— 

Mr. SCOTT. So are we talking about a good faith exception to 

leaking? 

Mr. STONE. I think it is important to distinguish between the 

leaker and the publisher. The leaker can be regulated consistent 

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with the First Amendment much more aggressively. And there I 

think it is sufficient to say that knowing disclosure of classified information that is properly classified is punishable. 

Mr. LOWELL. Congressman, one more thing on your last point. 

You know, the present statute and the glean by the courts as to 

the intent requirement to show, as Mr. Schoenfeld pointed out, that 

you had a belief that it could injure, whether that is good enough, 

let me tell you why it is not good enough. What does could injure 

mean? What if you believed there was a 1 percent chance that it 

could injure and a 99 percent chance that it wouldn’t? Where in 

that slope does somebody become a felon subject to 20 years in jail? 

And that is difficult, especially difficult in a First Amendment context. 

Mr. VLADECK. Congressman, I think the short answer is you 

don’t write one statute, you write three, right, and that you have 

one statute that is focused at espionage and spying, you have one 

statute that is focused on leaking, because as my colleague, Professor Stone, points out, you can impose higher burdens, you can 

hold government employees to a higher standard, and you have a 

third statute that deals with private citizens with no intent to 

harm the national security of the United States. Now, that statute 

I think is the incredibly tricky one to write. But no matter how it 

is written, I think having those categories separated out would be 

such a substantial improvement. And recognizing that the burdens 

should be different in those three cases would be such a positive 

development as compared to the status quo, that really I think, you 

know, almost anything would be beneficial. 

Mr. STONE. There is great benefit in having a very rigorous and 

narrow statute to punish the publication of the information. Because that puts pressure on the government to keep the secret in 

the first place. So they can’t punish WikiLeaks because they don’t 

have the requisite intent or they haven’t caused the requisite 

harm. And if they know that and they are serious about the secrecy, they will then take the steps necessary to keep the information secret. In that dynamic, I think it is very important not to 

make it too easy for the government to try to prosecute the ultimate speaker. Because if they can do that, then they will get lazy 

and sloppy on the question of secrecy itself. 

Mr. CONYERS. Thank you very much, Bobby Scott, for that interesting exchange. I turn now to the distinguished gentleman from 

Iowa, Steve King. 

Mr. KING. Thank you, Mr. Chairman. I do thank the witnesses. 

This is an outstanding lineup of witnesses here. And I would direct 

my first question to Mr. Lowell. Caught my attention in speaking 

about intent. And in this discussion that we have had, this dialogue about intent, I would be curious as to if you had separate intents and maybe three almost simultaneous, identical acts by different entities with different intents, are they still guilty of the 

same crime? 

Mr. LOWELL. To put flesh on the bones, Congressman King, in 

my brief introductory remarks today I said the statute—I was 

speaking about section 793 specifically—could apply, again, first to 

the government employee who had the confidentiality agreement 

and then said something or did something that she or he should 

102 

not have. And then you have the person he is doing it to. It could 

be a foreign policy wonk, it could be somebody else. And then you 

could have the reporter who, as I said, overheard the conversation 

and published an article. And they are all responsible for releasing 

the exact same information. They may be releasing it in different 

ways. Ironically, the last hearer is going to disclose it to the most 

amount of people. The first person in the confidentiality agreement 

is disclosing it to the least number of people. And yet it is easier 

to prosecute the first, as Professor Stone and others said it should 

be, than the last. So with intent let’s take that intent against the 

last three. As to the government employee, he or she knows that 

based on the confidentiality agreement, and whatever he or she 

does, that it is not supposed to occur, and there is very few excuses 

to go outside of channels to do it. If you protect whistleblowers, 

then putting that aside, the intent requirement is easier to prove. 

To the person who is not in the confidentiality agreement and is 

actively engaged in the exchange, as were the defendants in the socalled AIPAC case, that was very problematic. Because on Monday, 

White House officials or State Department officials brought them 

in to discuss foreign policy that they wanted them to know, and 

then 3 days later somebody at a different level called them on the 

phone and talked about the same policy that was the subject of 

their indictment. Their intent, therefore, could have been proved by 

showing that what was legal on Monday should not be illegal on 

Wednesday. 

And then finally, when you get to the point of the media, that 

is where all the comments of the intent requirement, depending on 

their complicity in the original leak, will make a big difference. 

So you can take the same act and have three different standards 

of intent and still survive, I think, under a constitutional scheme. 

Mr. KING. Mr. Wainstein, your comments on that? 

Mr. WAINSTEIN. Congressman King, I actually agree with the 

idea of having sort of this tripartite approach Steve Vladeck and 

Abbe have described. I think narrowing the provision for each of 

these different categories is going to make a more targeted piece 

of legislation. 

Mr. KING. Then let me take this to the injury to the United 

States. What does that mean and how can that be proven? 

Mr. WAINSTEIN. That is also another sticking point in the whole 

WikiLeaks situation. I think you have heard a little bit of that here 

today. The question of, okay, how damaging was it? Maybe back in 

the first tranche that came out about DOD, the DOD documents 

about Afghanistan, there were informants’ names, et cetera, et 

cetera, troop movements and the like. A lot of that stuff ended up 

getting taken out later on. It is obviously a sliding scale. And when 

you are dealing with the First Amendment, one of the justifications, especially if you are looking to prosecute a news organization, an organization sort of in the shoes of a news outlet, you have 

to look at whether you are justifying the prosecution and the incursion on their press activities in order to address real harm to the 

Nation. And that is one of the big issues I am sure the Department 

is looking at right now, going through all the things that have been 

released through these WikiLeak disclosures and seeing what sort 

of identifiable pieces of damaging information are in there. 

103 

Mr. KING. I don’t know that I am clear on this, and I turn to Mr. 

Schoenfeld. Do you believe the Espionage Act should apply to a foreign defendant that is operating outside the United States? 

Mr. SCHOENFELD. I think it could and should be applied. And I 

think that what he has done, what WikiLeaks has done is to certainly endanger, as a number of ranking officials have said, endanger our forces and endanger allied forces, civilians in Afghanistan 

and Iraq. The idea that the United States has no recourse in the 

face of this seems to be unacceptable. And I think looking at the 

law, that says whoever discloses. 

Mr. KING. And while you have the microphone, and for the 

record again I would appreciate it if you could just summarize 

those five points that you made in the closing part of your opening 

statement. 

Mr. SCHOENFELD. If I might take the liberty of looking at them. 

More attention to declassification. Attention to giving legitimate 

whistleblowers viable avenues other than the media to which they 

can turn. Reestablishing deterrence of leakers in the government so 

that those who leak have reason to fear that they will be prosecuted. Bringing down the weight of public opinion against leakers 

certainly, and against those who publish vital secrets, not just ordinary kind of secrets that are the daily fare of our American journalism. And in some extraordinary cases, prosecution of media outlets that publish secrets which endanger the public. 

The classic case that has been mentioned here is the Chicago 

Tribune case. But there are other cases that have approached that 

line in recent years. The Pentagon Papers case, the documents that 

Daniel Ellsberg turned over to the New York Times were historical 

in nature. There was not a single document in that collection that 

was less than 3 years old. Some of the material that has, say, been 

published by the New York Times in the last years since 9/11 have 

been operational, ongoing intelligence programs like the SWIFT 

monitoring program. That seems to skirt the line. I ride the New 

York City subways. And so do millions of others. And there are 

people out there determined to bomb those. And this is a program 

designed to stop those people that was compromised. I think the seriousness of that, and I think the irresponsibility of journalism in 

some cases has been extraordinary in this period. Much, much different from the kinds of things that the Times published in 1971. 

Mr. KING. Would you care to speculate on their motive for releasing information that is viewed as classified? 

Mr. SCHOENFELD. There were two really substantial leaks in that 

period. The first was the NSA warrantless wiretapping program. 

And there the Times had an argument that this was a violation of 

the FISA Act, and they wanted to bring it to a public stage. I think 

there is a legitimate debate about that. And they believe I think 

that they performed a public service. When we come to the SWIFT 

program, they had been warned by ranking officials, Democrats, 

Republicans, I think Lee Hamilton, one of the cochairmen of the 9/ 

11 Commission, not to publish this material, and they went ahead. 

And I don’t think they have offered a very convincing justification 

for doing so. One of the reporters, Eric Lichtblau, said that the 

story was above all else, and this is a quote, an interesting yarn. 

104 

Above all else. Now, for stuff of such gravity, I think one can’t 

imagine a more trivial rationale. 

Mr. KING. That answer says selling newspapers. Gentlemen, my 

clock went red a while back. But I appreciate all your testimony, 

and I yield back. 

Mr. CONYERS. I am pleased to recognize the distinguished 

gentlelady from Houston, Texas, a very active Member of the Committee, Sheila Jackson Lee. 

Ms. JACKSON LEE. Mr. Chairman, let me thank you very much. 

And I don’t want to be presumptuous to suggest that this may be 

the last hearing of this session, because I know that this Committee works into the very long hours into the night or into the session. But let me thank you very much for your astuteness in recognizing the importance of this hearing for those of us who are in a 

quandary, if you will. I sit on the Homeland Security Committee 

and have spent many hours in classified meetings in the crypt, if 

you will, listening to the array of threats against this country, and 

frankly, around the world. But I may also, or it comes to mind that 

if you become too restrictive and you have a law that is ineffective 

in the espionage law, you also impact what can be the modern day, 

if you will, whistleblowers. And I know that there has been a distinction made with the Pentagon Papers, sort of after the fact reports, as opposed to these documents that are current and in place. 

So I would like you gentlemen to help me with the quandary that 

I am in. To limit information limits the potential effectiveness of 

government. 

But on the other hand, I don’t know whether or not we had a 

hearing, Mr. Chairman, and I am sure we did, and my memory 

fails me, but I remember distinctly a sitting Vice President blowing 

the cover of an active duty CIA agent. And it was interesting to 

hear the response in that instance. This person’s cover was blown, 

and that sitting Vice President just thought that he was completely 

right, or either didn’t admit it or had someone else, unfortunately, 

be the fall guy for it. 

But I think in the Judiciary Committee it is important to really 

understand the law. There is some dispute. The WikiLeaks owner, 

leader indicates that they did write the London ambassador and 

sought to have certain information redacted and no one responded. 

But there is a November 27 letter from the State Department saying don’t release anything. 

Abbe, it is good to see you again. Help me with that. Because 

there was an effort made. I understand the difficulty of the espionage law is knowing that you are disclosing classified information. 

Does it have any provision for someone who tried to work with the 

appropriate persons? Because I guess I see a difference of opinion. 

I tried to work with you, you did not want to work with me. What 

is the culpability? 

I am going to yield to you first. I just want to talk about the law, 

and how does that relate to that specific action? 

Mr. LOWELL. Very good to see you, Congresswoman, again. Let’s 

distinguish where the law is and how it is applied versus to what 

people are saying could be done to improve it. So where the law 

is and where it applies, the elements that you are addressing goes 

to the following issues: When somebody is accused of violating 793 

105 

or 798 under the present Espionage Act, if they are a government 

employee, we have discussed the fact that they don’t have the same 

back and forth ability to show that they did not have a reason to 

believe that their conduct would injure the United States or benefit 

an adversary or a foreign country. So in the context that you are 

asking and one that this Committee is addressing, which for example might be the WikiLeaks case—— 

Ms. JACKSON LEE. Outside of that sphere. 

Mr. LOWELL. Outside of that or the one you raised. So then the 

question is the back and forth between Julian Assange to date and 

the other newspapers and the government officials, here is what I 

have, what would harm? what would you like redacted? goes to 

something. What it goes to is when the government prosecutes 

somebody in that position, that person—the government has to 

prove beyond a reasonable doubt a certain intent. The defendant in 

that situation will be able to raise that kind of conduct to show 

that the intent was not one that had in the mind a reason to believe to injure, but was quite the opposite, that he was doing his 

best, recognizing what he and others would say was his First 

Amendment duties to do what was right and also showing his intent was a good one. 

The problem is that this is subject to a prosecutor deciding I am 

still going to charge and let a jury decide that the intent was okay, 

whatever jury instructions a judge will give, and as one of the 

other Members said, the differences between trying that case in jurisdiction one versus jurisdiction two on something that is just 

called intent. And I hope that is responsive. 

Ms. JACKSON LEE. It is. And I would like Professor Stone to take 

a stab at that. And Mr. Lowell, and I want to call him Abbe, we 

worked in the past, mentioned the First Amendment rights. Do you 

want to give me some sense of where that plays a role? 

Mr. STONE. Sure. Again, I think that the government’s ability to 

regulate the activities of its own employees who have signed secrecy agreements is considerable and that that is where the focus 

should be, on keeping that information secret if it really needs to 

be kept secret. That once we move into the realm of public discourse, then we should be extremely careful. And the First Amendment demands that we be extremely careful. 

Mr. Schoenfeld a number of times has identified the Chicago 

Tribune incident from World War II, where the Tribune published 

information that revealed the fact that we were aware of a Japanese secret code and we had been using that as way of advancing 

our own war aims. And had that information been made available 

to the Japanese, as it could have been given the fact that it was 

published, that would have been in fact a situation where there 

was a clear and imminent danger that posed a grave harm to the 

United States. We would have lost a pivotal benefit in fighting 

World War II. And that seems to me the paradigm case for a situation where the knowing disclosure of that sort of information can 

be subject to criminal prosecution. 

But the key to that example is that it happens once a century. 

Nothing in the WikiLeaks case comes close to that. And it is important to say that is the situation where you can go after publishers 

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106 

ship to the government. And that almost never happens. And when 

it does happen, it merits punishment. But beyond that, we should 

be focusing our attention on the situation of keeping information 

secret in the first place, in house, in the government where secrecy 

is necessary. 

Ms. JACKSON LEE. I like that. Mr. Schoenfeld, you have a different perspective, but I think both of us have I think the same 

goal. As a Member of the Homeland Security Committee, I don’t 

fool around with potential terrorist threats and/or the new climate 

we live in. But my quandary is if we freeze down on WikiLeaks, 

we freeze down even on information that may help us in the war 

against terror. And I think the professor makes a very definitive 

point. I am embarrassed that the materials were accessible. How 

do you respond to that idea? 

Mr. SCHOENFELD. I agree with Professor Stone that the Chicago 

Tribune case really is of a different order problem, that there 

would have been the kind of immediate and irreparable harm that 

really does not flow from anything that appears in the WikiLeaks 

documents. But that is not to say that there is not significant harm 

from that release. I mean I agree with you we are all better informed now than we were 2 weeks ago before those documents appeared about what our government does. There is no question there 

is a public benefit that flows from that kind of leak. However, there 

is the damage done from particular documents themselves which 

we have only really begun to understand. There are so many different kinds of ramifications from these documents. 

But what also has happened is a single blow to the ability of the 

U.S. Government to conduct its diplomacy in secret, which is a critical task for keeping the peace. If our diplomats or foreign diplomats can’t speak candidly to American government officials, we 

are not going to be well informed about what is going on abroad. 

Ms. JACKSON LEE. My message then is first of all, I want our diplomats to speak candidly, and I want our government to come into 

the world with 21st century technology so that a young military 

personnel, 23 years old, doesn’t have the ability to hack into it. 

They will handle his case, and I don’t think we are discussing that 

right now. But we do have a burden and a responsibility. You are 

absolutely right. The candidness I think is appropriate. I understand the pundits have indicated that we look good, but we don’t 

know what else is coming. We look good because we were consistent in our cables to our basic policy. That puts a smile on my 

face. But the point is that if lives were put in jeopardy—and again 

I go back to a Vice President that blew the cover of a CIA agent. 

You know, to me that is a direct threat on some individual’s life. 

If lives have been put in jeopardy, we have a different, if you will 

framework to operate under. But your message to me is that we 

now have to get more sophisticated in how we do it. 

I see my time. Can I just get the last three witnesses to comment? And I think I missed Mr. Wainstein. But I am going to go 

this way and then you, sir, if I could just—if you could just quickly. 

The dilemma, there was an inquiry, and I think Mr. Lowell made 

it clear that someone’s intent is in play here. Mr. Vladeck. 

Mr. VLADECK. Congresswoman, I think that is right. The only 

thing I would add, and you mentioned this at the beginning of your 

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questioning, is if we are going to focus on the person who is doing 

the leaking, if we are focusing on the government employee, as I 

think your colloquy with Professor Stone suggested, the other piece 

of this is whistleblowing. 

Ms. JACKSON LEE. Right. 

Mr. VLADECK. And whether and to what extent current whistleblowing laws are adequate to provide opportunities to government 

employees who have come across what they think is wrongdoing to 

have remedies other than going to their local newspaper. With that 

in mind, I think it is just worth noting that I believe last Friday—— 

Ms. JACKSON LEE. Right, the new appointed person. 

Mr. VLADECK. S. 372. You know, I am not an expert on Federal 

whistleblower laws, but I do think that recognizing that that is 

part of this conversation, and that strengthening Federal whistleblower laws, especially as they apply to the intelligence community, 

could actually meaningfully advance this conversation as well by 

reducing the number of occasions where government employees will 

feel the need or the lack of other remedies when they come across 

wrongly classified information. 

Ms. JACKSON LEE. If you would, please. Thank you. 

Mr. BLANTON. Congresswoman, I think that is a very important 

caveat to what Professor Stone was saying. That the government 

has a lot more power to regulate the employee than it does to regulate the media. And I would add overclassification, as does Gabriel 

Schoenfeld, to that. If we can’t deal with the overclassification and 

we can’t really protect serious whistleblowing, then I think the government is not on such solid ground on coming down hard on its 

own employees and regulating them in that more severe way that 

Professor Stone says is constitutionally valid. 

Ms. JACKSON LEE. Mr. Nader? Thank you. Welcome. Thank you 

for your service to this Nation. 

Mr. NADER. Thank you. I think the point you earlier made, that 

the disclosures by WikiLeaks can actually enhance our national security. The disclosures do damage. They do damage to government 

violations, to war crimes, to torture, to the kind of policies that inflame and expand the opposition to us by people who never had 

any enmity to us. And we can all cite Peter Goss and General 

Casey and others who basically pointed that out, that our presence 

in these countries, if we are not careful, provides fertile ground for 

more opposition and more risks to our national security. So in that 

sense, these leaks build up public opinion and congressional engagement to hold the government’s feet to the fire as a government 

under the rule of law and under constitutional standards in its foreign and military policy. 

Ms. JACKSON LEE. The Chairman has been very kind, if you 

could just finish, and I will finish. 

Mr. WAINSTEIN. Thank you very much, Congresswoman. If I 

could just associate myself with what Steve Vladeck said about the 

whistleblower laws. They are a relatively new animal over the last 

few decades, providing protections for people who see something 

wrong within their agencies and want to disclose it. And not only 

do we need to make sure we have sufficient laws to protect whistleblowers and prevent retaliation, but also procedures, user-friendly 

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procedures in those agencies so that if I am in an agency, I see 

something corrupt or wrong and I want to raise it up, it is easy 

for me do so. I don’t have to worry about retaliation. That is important, because obviously if you have the law and the procedures in 

place that make it easy and seamless to do that, then there is no 

reason that person needs to go to the press. So in addition to looking at the laws, any oversight that looks at the agencies, especially 

the intelligence community, to ensure that it is easy for people to 

blow the whistle without fear I think would be useful. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. Just to you, Mr. 

Chairman, this is a bipartisan hearing. And I just simply want to 

say maybe as we go into the next session, in a bipartisan way we 

can look at whistleblower, or as you well know, the No Fear Act 

that needs to be—which has to do with protecting government employees against whistleblower comments. And I hope we will do 

that. 

Thank you very much, Mr. Chairman. I yield back. 

Mr. CONYERS. The Chair recognizes the Ranking Member of the 

Courts Subcommittee of this Committee, the gentleman from North 

Carolina, Howard Coble. 

Mr. COBLE. Thank you, Mr. Chairman. Mr. Chairman, I want to 

commend the panelists for their durability today. They have hung 

tough with us. I appreciate that. 

Mr. Wainstein, you mentioned the possibility of enacting a provision to prohibit the disclosure of classified information by government employees regardless of the damage to the national security. 

What are the pros and cons accompanying such a statute? And do 

we run the risk of inviting more classification than currently exists 

in an effort to prevent dissemination of, say, unsavory but not necessarily damaging material? 

Mr. WAINSTEIN. That is a very good question, sir. And that actually harks back to something that Abbe Lowell mentioned about 

how back in 2000 there was—that statute was passed, actually, 

and then the President Clinton vetoed it. And the statute basically 

said if you are a government employee, you sign that nondisclosure 

agreement and you disclose classified information, something that 

says secret, then you are guilty. 

The pro is that that is very clean. You don’t have to show damage, you don’t have to get into this back and forth of whether it 

was damaging to disclose secrets about the Iraq war or good because the Iraq war needed to be examined more closely. It is just 

clear. You have a responsibility as a government employee to protect classified information. You willingly and knowingly disclosed 

it, you are guilty. So that is on the pro side. 

The con side, of course, is that, as you pointed out, there is so 

much information that is classified that it would be chilling to 

many government employees when they are going to talk to people 

that, gee, all it takes is one step over the line, and I get into one 

iota of classified information and I am guilty. You know, if I intentionally disclose that, I can’t talk about anything. And so one of the 

cons is that it will end up that people will be scared to talk to the 

press, people will be scared to talk to Congress because they are 

worried they are going to trip over classified information. And you 

might have people who will be prosecuted for information which 

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though classified, as you pointed out, really might not be all that 

sensitive. It just might be either a matter of mistaken overclassification or something which is embarrassing but not really sensitive. 

Mr. COBLE. Thank you for that, sir. 

Mr. Schoenfeld, is it your belief that the First Amendment confers on journalists an absolute right to publish classified information or government secrets? 

Mr. SCHOENFELD. No, it is not. And I think from what I have 

heard on the panel, there is some agreement with me that under 

some circumstances journalists can be prosecuted under the espionage statutes. To hark back to the Chicago Tribune case, we have 

a case where I think the espionage statutes would apply if the 

story came out that cost the lives of tens of thousands of U.S. servicemen and prolonged the war. And the Supreme Court of course 

in the Pentagon Papers case, five of the nine justices, as I had 

noted earlier, did suggest that if a case came to them not as a prior 

restraint case, but after the fact as an Espionage Act prosecution 

or a Section 798 prosecution, they would strongly consider upholding a conviction if the material at issue was material that Congress 

had indeed proscribed under the statutes. 

Mr. COBLE. I got you. Thank you, sir. 

Professor Stone, we touched on this but let me run it by you 

again. Does WikiLeaks enjoy the same protections as traditional 

journalism organizations, A? And in the Internet age, how do we 

distinguish between traditional media and the new media? And 

does the law contemplate such distinction? 

Mr. STONE. I think realistically, it is impossible to do that. The 

Supreme Court itself, in interpreting the First Amendment, has always refused to define who the press is. And in any event, the 

speech clause, as has been noted, is an independent protection. So 

although that may be frustrating, I think as a practical reality 

there is no way to distinguish WikiLeaks from the New York Times 

or from a blogger. They are all part of the freedom of speech that 

the First Amendment protects. And that doesn’t mean that the conduct that they engaged in may not be treated differently depending 

upon what they actually do. But I think in terms of the nature of 

the institutions or individuals, as a practical matter that is not 

going to be a sustainable line of inquiry. 

Mr. COBLE. Thank you. Thank you, gentlemen, for being with us 

today. 

I yield back, Mr. Chairman. 

Mr. CONYERS. Thank you, Mr. Coble. I now turn to Bill 

Delahunt, the distinguished gentleman from Massachusetts. 

Mr. DELAHUNT. Thank you, Mr. Chairman. And this has been a 

very informative discussion. And we are talking about legislation 

and, you know, the problems of drafting appropriate language and 

the issues of intent, et cetera. But I still go back to what I said initially. Until Congress, and particularly Members of this Committee, address the issue of the classification process, we are operating in the dark. We don’t understand the classification process. 

I wonder if anyone on the panel really does in terms of the steps. 

Who classifies? I heard some of you use the term ‘‘improper classification.’’ Who makes that decision? I have heard the term ‘‘authorVerDate Aug 31 2005 13:42 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00113 Fmt 6633 Sfmt 6601 H:\WORK\FULL\121610\63081.000 HJUD1 PsN: DOUGA
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ized leaks.’’ What in the hell is an authorized leak? Is that a leak 

that, you know, someone in the Administration can do but we 

can’t? What struck me again, when I chaired the Oversight Committee in Foreign Affairs, was we would get material that was redacted, page after page after page after page. All you knew or all 

you saw was the number. And then of course the next day you 

would read in the newspapers. But I guess that was a good leak 

as opposed to a bad leak. 

So I hope—and I would direct this to my colleague from Iowa— 

I hope with the new Congress that Congress conducts a series of 

hearings where it demands an explanation of the process itself. Are 

we going to rely on a bureaucrat, you know, at a lower level to do 

the redaction? Who does all this? 

Help me with the mystery. Can anyone here? Maybe I see you, 

Abbe, nodding your head. Give it a shot. 

Mr. LOWELL. I can’t answer that question as a blanket fashion 

across all agencies and all parts of the Department of Defense and 

all places in the world. But I can answer it based on the materials 

that I have seen on the cases I have litigated. And you are raising 

a point. So in the AIPAC lobbyist case, by the time we were done 

and getting ready for trial there was no fewer than, I don’t know, 

4,000, 5,000 pieces of paper that were in a classification mode at 

one level or another. There is an Executive Order which has criteria for why something is classified, very specific categories of the 

potential harm that the release of that document or information 

could cause. Like every other thing you have been talking about 

today, those aren’t microscopic definitions in a mathematical way. 

They are subjective to begin with. One, for example, talks about interference with the Nation’s foreign policy or foreign relations—or 

relations with a foreign country. I mean, what interfered? 

Mr. DELAHUNT. What does that mean. 

Mr. LOWELL. Well, I mean, then the second question is who gets 

to decide you ask? 

Mr. DELAHUNT. That is the key. 

Mr. LOWELL. Well, in many agencies what you will find is that 

it is not just the Secretary or the Deputy or the Assistant Secretary 

or its equivalent, it is the lowest level of person working on the 

subject at the end of every day. 

Mr. DELAHUNT. But that is my concern, that is my concern. I 

think that issue is the predicate for addressing the concerns that 

you as a panel have addressed. You got to begin there. And we 

really have to do a thorough review, because I can—I would testify 

in the next Congress that as Chair of that Committee, I saw material that was classified that was, it was absurd that it was classified. It was just building up a backlog of classified information that 

ought to be, that everyone in this room today would concur ought 

to be in the public domain. 

The concern that I have is not so much about WikiLeaks but 

what we are not having access to in a democracy. And again, I 

hope that in the future, it is addressed, whether it is in this Committee or any Committee, maybe a Select Committee is actually 

needed, and people coming in who actually do the classification, not 

the secretary, not the head of the agency, but to hear it. 

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Now, I had occasion working with Congressman Lungren where 

we had concerns about information that was being disseminated 

from the FBI. It was very revealing in terms of how it was done. 

And I am not saying it was, the classification was done in good 

faith. But it clearly did not, in my judgment, meet any kind of 

standard in terms of classification. That has got to be reviewed. 

Mr. Blanton. 

Mr. BLANTON. Congressman, you have got a couple of great assets at your disposal for the next session. There is a terrific review 

board called the public interest declassification board headed by 

Marty Faga former head of the National Reconnaissance Office. 

Smart people are looking at exactly these questions of how do you 

change it on the front end so you don’t—because every single classification decision that a lowly bureaucrat makes generates a 

stream of cost to the taxpayers and to the efficient flow of information that goes on indefinitely until somebody like me asks for that 

document to get released. That is a terrible way to do business. It 

should be automatic after a certain sunset on every one of these 

secrets. 

You can call in those public interest declass board folks so they 

can give you some expertise. There is a wonderful little office called 

the Information Security Oversight Office. Those are the folks that 

audit the secrecy system. They are smart. The head of that office 

is the guy that coined the term WikiMania that I have been using 

today in my statement. Call them in and give them some more resources. I think they got 29 people to ride herd on this massive 

overclassified security system. They need to know. But they can 

guide you through how does the stamp get made. 

And the last thing I would ask, Mr. Chairman, we have done 

about four different postings that support the consensus on the 

Committee of massive overclassification. Congressman Poe commented on it, and agreed with Congressman Delahunt actually. It 

seems that they actually agreed on this. This is actually a piece of 

White House e-mail that is declassified in a process 1 week apart. 

And the first time they cut out the middle, blacked it out, and 

the second time they cut out the top and the bottom. You slide 

them together and you got the whole thing. And the punch line is 

it was the same reviewer, a senior reviewer with 25 years experience. I called him up and said what is up with that? He said, oh, 

there must have been something in the paper about Egypt that 

week, but Libya this week. 

Mr. DELAHUNT. Exactly. 

Mr. BLANTON. We got about five or six Web postings of these 

kind of graphic illustrations of the overclassification problem that 

will help you get your arms around it, and I hope do something 

about it. 

Mr. DELAHUNT. Who authorizes the leaks, by the way? 

Mr. BLANTON. There is that famous quote from James Baker, the 

former Secretary of State under President George H.W. Bush. He 

said, you know, the ship of state is a very unusual ship, it is the 

only one that leaks from the top. And I think Daniel Schorr once 

commented when David Gergen was brought into the Bush White 

House, well, you know, Jim Baker was too busy leaking at the high 

level, they need somebody to leak at the mid level. 

112 

Mr. DELAHUNT. Well, you know, what I find ironic, of course, is 

the umbrage that some will take about some leaks, but I guess it 

is not their leaks. There are good leaks and bad leaks, I guess is 

the bottom line. Mr. Nader. 

Mr. NADER. Congressman, part of this goes back to the integrity 

of the civil servant and protecting it and letting civil servants and 

people who work in the Armed Forces and the executive branch 

take their conscience to work. And if you look at the civil service 

oath of office, it is not to the cabinet secretary, it is not to the 

President, it is to the highest moral standards. And a lot of this 

idiocy and overclassification comes from the lack of internal selfconfidence that they will have some reasonable protection by civil 

servants who would say this is foolish to do this. 

I will just give you one example. Forty years ago, one agency of 

the government wanted to get from the U.S. Navy the amount of 

water pollution coming out of naval bases. And the Navy denied 

the then-agency dealing with water pollution, they denied the disclosure of the volume of sewage going into the ocean on the 

grounds that the Chinese and the Soviets could use that information in order to determine how many sailors were on the base. That 

is a level of foolishness that could have been nipped in the bud if 

we supported our civil servants and basically recognized that this 

is, overall, a struggle between individual conscience of people up 

against the organizational machines that we call bureaucracy. 

And we always should bring back the civil service oath of office, 

very short, very compelling, they all have to take it. We should protect them in making sure that it can be implemented in their daily 

work. 

Mr. CONYERS. Thank you very much. Your additional time was 

granted at the leave of Steve King of Iowa. We now turn to the distinguished gentleman from Arizona, Trent Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. I appreciate it. I 

appreciate all of you folks being here. A challenging subject this 

morning. I think it is obvious to me, perhaps to all of us, that no 

human being, regardless of their education or training, is really 

competent to opine or to know the full extent of the actual damage 

that a leak like WikiLeaks could cause. I mean, I guess you could 

put a team of experts together to try to assess the future and the 

potential undetermined damage, and I just think that it would be 

completely a hopeless endeavor. 

So I am convinced, obviously, that Julian Assange cannot possibly be able to project what the potential damage of what he did 

is all about. That is a significant point. But in light of that obvious 

truth, I am wondering if it is time perhaps for us to rewrite our 

statutes to establish some sort of lower burden for the prosecutor 

when it comes to proving the likelihood that a leak could cause actual damage and the necessary level of intent under the statute 

itself. 

Mr. Schoenfeld, you mention in your testimony that the ill effects 

of information leaks can sometimes take years to manifest. And 

you mention Pearl Harbor and the book, The American Black 

Chamber as an example, which I think is a brilliant example, 

where the book had disclosed certain things that perhaps could 

113 

have prevented Pearl Harbor. And I am going to try get you to expand on that a little bit. 

And that our government, I understand, actually considered 

prosecuting the author of that book but felt like the prosecution 

and the public nature of it might enlighten Japan even more than 

what the book did. So I am hoping that you can describe what 

might have seemed to the outside observer to be the unforeseen 

consequences of the leaks through the book, and if hypothetically, 

the author of The American Black Chamber were to be tried criminally for disclosing intelligence information today what level of 

mens rea do you think a prosecutor would be able to show in this 

case? And I mean, I guess purposeful or malicious intent to aiding 

the bombing of Pearl Harbor would not be one of them. That probably would be too little too strong. But what about perhaps just 

recklessness? I know it is difficult to show malicious intent, but 

yet, the devastation that was caused at Pearl Harbor, you know, 

my last memory of that reading of the numbers on that war is 50 

million dead. It was kind of a big deal, the whole war. 

And so in light of this, do you think that we should reconsider 

the mens rea elements of our espionage statutes? And I have given 

you a complicated question there. Tell us about Black Chamber, 

tell us how it all fits and how you think that we would approach 

that today. 

Mr. SCHOENFELD. Thank you very much, Congressman, for that 

very interesting question. Herbert R. Yardley was probably America’s leading cryptographer in the 1920’s. He was put out of his job 

after Secretary of State Simpson said, gentlemen don’t read other 

gentlemen’s male, fell on hard times in the Depression and wrote 

a book called the American Black Chamber, basically wrote it to 

make a pile of money. He laid bare on that book the full history 

of American code-breaking efforts, including our successes in the 

Washington Naval Conference of 1921 where we broke the Japanese diplomatic codes and were able to outfox them in those negotiations. 

When that book came out, it was treated much like Eric 

Lichtblau regarded his own story in The Times as a kind of interesting yarn. Highly entertaining was what an American newspaper 

said about it. But in Japan it caused an absolute furor about the 

laxity with which their own government had treated their codes 

and ciphers. And it led the Japanese government over the course 

of the 1930’s to invest heavily in additional code security, and they 

developed a purple machine which was nearly unbreakable. And 

one of the consequences was that it delayed the—it slowed down 

the pace at which we, our resurrected code breaking effort, could 

read Japanese cables. 

And we were somewhat behind when Pearl Harbor came along 

and we missed crucial signals that Pearl Harbor was the intended 

destination of the Japanese attack. Now, if Yardley were to be 

prosecuted today, it would be not a hard case because the intent 

provisions of section 798 which govern communications intelligence 

are very clear. It is one of those unusual provision in American law 

where the Act itself is the crime without an intent provision, as far 

as I remember. 

114 

And so there might be a constitutional challenge, but the statute 

itself does not have an intent requirement. As for relaxing the intensity under the Espionage Act, I am overall very cautious about 

changing this Act anyway. I think Congress should move very slowly. Widening it has real costs; tightening it has other costs, though 

I don’t have an answer. But I think hearings like this with attorneys, and I am not an attorney who worked closely with the Act, 

is very much in order. 

Mr. FRANKS. Thank you, Mr. Chairman, my time is up. But I 

really want you to know I appreciate the response, and I hope it 

kind of puts things in perspective here. Sometimes there is no way 

to possibly anticipate what certain leaks can cause. And in this 

case, it really caused Japan to completely rewrite, reassess their 

codes and potentially could have prevented Pearl Harbor. And in 

the 9/11 world that we live in, it is a relevant consideration. And 

I thank you, Mr. Chairman. 

Mr. CONYERS. Thank you very much, Trent. But Professor Stone 

wanted to get one comment in about your question. 

Mr. STONE. Thank you, Mr. Chairman. I think it is very important not to get fixated on this question of does the speech cause 

some harm. One of the things the Supreme Court figured out pretty quickly is that almost all speech causes harm, it is not harmless. 

And so it made a terrible mistake during World War I, which is 

that it took the position that because criticism of the war would undermine the morale of the American people, it might lead people 

to refuse to accept induction into the military, that that speech 

could be punished because it might have a harm. And what they 

figured out pretty quickly after that is that was a disaster. That 

you can’t prohibit speech that criticizes an ongoing war because it 

might have harm. Speech does have harm. And the Pentagon Papers case, although the court said it was not likely in imminent 

grave harm, even Justice Stewart conceded the speech was harmful, certainly we were revealing all sorts of confidential information 

about the past, that we had double-dealed with respect to some of 

our allies, that we made alliances that hadn’t been publicly disclosed before, that made it more difficult for us to negotiate in the 

future. If the standard focuses on harm generally, then you have 

given up the First Amendment. 

Mr. CONYERS. Well, thank you very much. And we thank Trent 

Franks for raising this line of discussion. I turn now to my good 

friend, the Chairman of the Court Subcommittee, Hank Johnson of 

Georgia. 

Mr. JOHNSON. Thank you, Mr. Chairman, for holding this very 

important hearing. Thank you panelists for bearing through it. Before I ask a few questions, I would like to respectfully remind my 

colleagues that the WikiLeaks organization and Mr. Julian 

Assange are publishers. 

Now, if it can be shown that they, in some way, aided and abetted in the perpetration or commission of a crime, or if they were 

parties to a crime, then they could be subject to prosecution. But 

the Justice Department has yet to come forward with an indictment. And until and unless an indictment is issued, then—and 

until there is a trial on an indictment, then Mr. Assange is entitled 

to a presumption of innocence by law, and his guilt would have to 

115 

be proved by—there would have to be proof beyond a reasonable 

doubt before that cloak of innocence, that presumption of innocence 

could be removed from it. 

So first I would like to just settle this down and let us look at 

this situation through that lens. We do have constitutional rights, 

among which is a right to speak freely and a right to publish First 

Amendment. And I would also like to point out the fact that all of 

the documents that were made available to WikiLeaks are not all 

classified. Some are classified. There have been indications from 

Secretary Robert Gates that these releases thus far have not significantly harmed overall U.S. interests. 

And a quote from Secretary Gates is as follows: The fact is governments deal with the United States because it is in their interest, not because they like us, not because they trust us and not because they think we can keep secrets. And so while there is a public furor about the release of the documents and the information 

contained therein having been disclosed to the public, we must not 

get carried away in a fervor as to what has actually occurred. 

Now, if these leaks, and I assume that they do undermine national security and the ability of American diplomats to do their 

jobs, and American personnel who actually engage in compromising 

this classified information, should be prosecuted, and should be 

prosecuted to the fullest extent of the law. But unless those criminal allegations are proven, let’s be careful and let’s insist on that 

presumption of innocence. 

Now, The New York Times is also publishing this information 

and we aren’t shutting down their Web site or encouraging an 

international manhunt for its editors. And we cannot allow whatever outrage that we may have, whether or not it be justified or 

not, to cloud our judgment about our fundamental right to a freedom of the press. 

Now, we have got to acknowledge that more than just the publishing of this material, this is actually a failure of the U.S. to protect its material. After all, it is a private first class who is alleged 

to have had access to this treasure trove of information and the 

ability to download it. 

Primarily it is our fault that this information was released, and 

we need to—and if there is a service, or if there is a positive twist 

on what has occurred, it is that we have been made aware of a softness in our protection of our important information, and therefore 

we now, because of public disclosure, we are now in a position to 

correct and make safer and more fail-proof our information. So for 

that I would have to thank Mr. Assange for that public service. 

Now, we certainly should do a better job of protection instead of 

embarking upon a crusade to harass and even prosecute publishers 

of information. And I trust that our Justice Department will look 

very carefully at this case and the chilling effect that a prosecution 

that is unwarranted could have on our ability to enjoy our First 

Amendment freedoms in this country. 

The Administration has directed Federal agencies to prohibit 

their employees from accessing WikiLeaks documents on their 

work computers. It has also been reported that a State Department 

employee and alumnus of Columbia University School of International and Public Affairs has warned school officials that stuVerDate Aug 31 2005 13:42 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00119 Fmt 6633 Sfmt 6601 H:\WORK\FULL\121610\63081.000 HJUD1 PsN: DOUGA
116 

dents interested in a diplomatic career should not access the documents, even from their home computers. 

If I may ask Mr. Blanton and Mr. Nader, what are your thoughts 

about this, and censorship-free Internet access has been a priority 

for us as we have dealt with other countries, particularly China. 

And we encourage them to open up to have free Internet or freedom of Internet access. And do you see where our current stance 

could be—could place us in an untenable position as far as just assuming a moral high ground for making those kinds of arguments 

to those around the world who don’t enjoy the same freedom as we 

do? Mr. Blanton and then Mr. Nader. 

Mr. BLANTON. Mr. Congressman, that wonderful example from 

Columbia University, I think the best answer to that came from a 

professor there named Gary Sick, who was a career Navy officer 

and served on the National Security Council staff under Presidents 

Ford, Carter and Reagan. Professor Sick stood up, I think, in an 

open meeting at Columbia and said, if there is any student of international affairs who is not reading the WikiLeaks cables, then they 

should be thrown out of the profession because this is essential information. 

The Air Force is doing this. This is silly. The Air Force is essentially restricting its own open source information gathering. The Library of Congress is stopping the WikiLeaks site. This is just silly. 

It is self-defeating, it is foolish, I am sure it will end, it doesn’t get 

us anywhere. 

And there is the larger question you are going to, and I think 

this is where the slippery slope that Mr. Schoenfeld was talking 

about, he thought the Act should apply to foreigners. Well, I have 

to say on our Web site, the National Security Archive, we published 

the transcripts of Mao Tse-Tung’s meetings with Richard Nixon 

and Henry Kissinger. 

That is top secret information in China. That would certainly be 

subject to their Espionage Act. So they get a right to come prosecute me on that basis? I am sorry, I don’t think so. I think we 

should look at limiting our own laws and trying to move to a different kind of standard about what transparency we can bring 

about in governments worldwide. 

Mr. NADER. Well, I think those recommendations, Congressman, 

were, first of all, futile, they can’t enforce it, chilling, and induces 

not the best type of conscientious civil servant or foreign service officer that the student should aspire to. The second point on China 

is very well put. I think Hillary Clinton is not presently recalling 

her remarks when she, in effect, if anything, lauded the hacksters 

in China for breaking through Chinese government censorship on 

the Internet. 

And as you implied, we can’t lecture the world in one direction 

and then start engaging in kind of a suppressive activity in our 

country. Hillary Clinton would be a very good witness before this 

Committee next year to explain not only what she perceives as the 

freedom of Chinese hackers compared to other hackers, but also 

how she has, in effect, done what Secretary Gates has done, which 

is downplayed the importance in terms of the damage and risk of 

the release of these State Department cables. The more Gates and 

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Clinton downplay this, it seems the stronger case Julian Assange 

has for what he has done. 

Mr. JOHNSON. Let me ask if anybody sees any benefits that has 

accrued from this unauthorized disclosure of documents, of confidential documents, some of which are secret. 

Mr. SCHOENFELD. Congressman, I think there are unquestionably benefits. But as Professor Stone mentioned a few minutes ago, 

there is also always harm. 

Mr. JOHNSON. And we have talked about the harm. I just want 

to talk about the benefits. 

Mr. SCHOENFELD. No, I take the point. I think there is—you 

know, it is hard to dispute that having access, having public access 

to information that wasn’t in the public domain and that should 

have been is always a positive thing. But, you know, to use the old 

aphorism, ‘‘sunshine is the best disinfectant.’’ You know, I don’t 

think the question is whether there is a benefit. I think that seems 

pretty clear. 

Mr. JOHNSON. Anyone else? 

Mr. LOWELL. One quick thing is this is a benefit, this is a clear 

benefit from these events, because it is allowing Congress to sift 

through, again, a 100-year-old statute to ensure that it is still 

working the way it should is against all the other values that we 

have. So in that sense it has sponsored this kind of public discourse, and we are the better for it, I think. 

Mr. JOHNSON. Well, we have some amongst us here in Congress 

who feel that government is the problem, government is, as soon 

as it starts putting its hand in things, then everything goes haywire. So I don’t know how we resolve that basic conflict, although 

I guess those folks who would say that the government gets in the 

way are confining their objections to a commercial context and not 

a security context. But it is still ironic that there would be those 

who would chip away, and really hack away at our right to free 

speech, and a free press, while at the same time, wanting to get 

government to get out of the regulatory business with respect to 

commercial activities. 

So with that, I will yield back. Thank you, Mr. Chairman. 

Mr. CONYERS. You are welcome, Chairman Johnson. 

Mr. JOHNSON. And would note that not many are around to listen to my comments. 

Chairman CONYERS. The Chair is now pleased to recognize Judge 

Charles Gonzalez of Texas. 

Mr. GONZALEZ. Thank you very much, Mr. Chairman. And Mr. 

Lowell, thank you very much for characterizing the hearing of the 

United States Congress as something that is been official that 

hasn’t been the most popular statements in reference to what we 

have been doing, but thank you. 

The first question is, whatever we do here does have implications 

for matters that are really the jurisdiction of other Committees. 

But very important, and I think you all recognize this, so I would 

want a yes or no from each of the witnesses, because we are talking about the conduit, we are talking about the recipient of the information that has been provided them. 

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Would you agree—well, yes or no, is the Amazon cloud server a 

recipient, is an Internet service provider a recipient? And Dean 

Stone, just yes or no. 

Mr. STONE. Yes, but it is unconstitutional. 

Mr. BLANTON. Yes, but what? 

Mr. STONE. It is unconstitutional. 

Mr. BLANTON. What’s unconstitutional? 

Mr. STONE. It created its recipient for purposes of criminal liability. 

Mr. GONZALEZ. But the conduit, the medium is a recipient. 

Mr. STONE. Under literal definition I would say yes, but I would 

say it is moot because it would be unconstitutional to apply it that 

way. 

Mr. GONZALEZ. Mr. Lowell. 

Mr. LOWELL. Yes, they are a recipient. The statute will apply 

once they redisclose. It is not a crime to receive, it is a crime to 

retransmit, which they are doing by allowing people onto their site. 

And like the professor, I think such an application would be a gross 

overapplication and unconstitutional. 

Mr. GONZALEZ. Mr. Wainstein. 

Mr. WAINSTEIN. Yes, Congressman, it would be recipient and I 

guess it could fall within the statute, but it is very unlikely anybody would ever want to prosecute it. And it would have to await— 

while there is a provision that says if you retain and did not tell 

or return the information to the government, under some circumstances, an entity could be prosecuted, it is very unlikely that 

such an entity would be prosecuted, even if it, in turn, distributed 

beyond the service. 

Mr. GONZALEZ. Mr. Schoenfeld. 

Mr. SCHOENFELD. Yes, it is a recipient. I agree with Mr. 

Wainstein that it is very unlikely that any prosecutor would ever 

tackle it. There are so many other more blatant leaks that have not 

been prosecuted; that one seems really a stretch. 

Mr. GONZALEZ. Mr. Vladeck. 

Mr. VLADECK. Yes, I just echo Mr. Wainstein’s point, I think the 

key is the retention provision of the Espionage Act. I think the government would far more quickly prosecute for retention than for 

publication. And I think that is where you would see the constitutional problems that Mr. Lowell and Professor Stone alluded to. 

Mr. GONZALEZ. Come on, Mr. Blanton, disagree. 

Mr. BLANTON. Yes, but should never be prosecuted, just never. 

Mr. GONZALEZ. Mr. Nader. 

Mr. NADER. No, it is a conduit contractor. 

Mr. GONZALEZ. See, I am with you, Mr. Nader. It has huge implications, unbelievable implications. Because then I really think you 

need to prosecute the person that provided the ink for the newspaper, the person that provided the paper for the newspaper. Why 

aren’t we doing that? And you are saying it is unlikely, but crazy 

things happen, crazy things happen when people are scared, and 

there is fear out there. 

So this question will go to Mr. Lowell, and let’s see who else, it 

is going to be Mr. Vladeck. You all have given us certain suggestions, and I think they are excellent. And it all comes down to what 

I think have been basic principles all along, and that is intent. So 

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let’s say we tighten up how we classify information, and we find 

this formula and we find the arbiter, we have got the criteria, it 

is tightened down; it is legitimately classified, and then someone 

violates their oath. That is easy. I mean, that person is going to 

be persecuted, and he should be—or prosecuted and persecuted 

likely. And that happens. But now we go to that person that receives the information. And you say that, Mr. Lowell, I think you 

had introduced a clear and precise specific intent requirement—or 

that is Mr. Vladeck. Mr. Lowell, carefully define espionage, intent 

to injure the United States. 

How do you define specific intent? You can’t just say, well, I saw 

it and anyone who knows that this is—could be injurious to the legitimate interest of the United States, or do you start having something at that point in time that you should assume, a reasonable 

person should assume these things? 

How do—is it just the traditional principles that we always 

apply? Because I understand. I think you are on to something that 

you still have to have the intent. But I never had—I don’t recall 

someone acknowledging that they intended to do certain things 

when their whole defense is that they are not culpable because 

they never had that intent. So we end up back on the intent question. 

Mr. LOWELL. Well, either Congress will end up in the intent or 

the courts will end up with the intent issue. And when both of 

them do, they will look to various things that are, as you pointed 

out, true in every criminal case to see what a person accused intent 

by a person’s statements, the context in which they acted, and the 

circumstantial evidence. If a government employee sees that their 

immediate boss is talking to the press about a topic, that person 

may have a good faith belief of that is okay to talk about even if 

it includes classified information. 

If a recipient is acting in the context of his or her job as a lobbyist or as a member of the press, or even in a free speech context, 

and hears something and retransmits it because there is nothing 

that indicates that it is of any particular damage and it is part of 

the person’s job, it goes to that person’s intent. If the person sees 

that they are operating overtly and not covertly, they are not stealing information, they didn’t pay for it, they didn’t bribe anybody for 

it, then there is evidence of their intent. 

The issues of bad faith and good faith apply in almost every 

criminal prosecution in a white-collar context. This is no different, 

it will just be unique as to what will show the good or bad faith. 

Mr. GONZALEZ. Mr. Vladeck. 

Mr. VLADECK. I don’t have anything to add. I think he is exactly 

right. The only piece I might tack on at the end is whether there 

would be circumstances where we would also want to include recklessness, where we might allow for prosecution, short of the showing of specific intent if we can show that the defendant acted completely recklessly and without regard for any of the safeguards that 

are built into the statute. But I otherwise totally agree with Mr. 

Lowell. 

Mr. GONZALEZ. Mr. Chairman, thank you. I do have one last observation, and that is when we all went to law school, we remember in times of war, the law is silent, remember that? The ConVerDate Aug 31 2005 13:42 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00123 Fmt 6633 Sfmt 6601 H:\WORK\FULL\121610\63081.000 HJUD1 PsN: DOUGA
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stitution is not a suicide pact. The problem in today’s world is that 

wars are indefinite, wars are open-ended, wars are not even declared. That is what really is probably one of the greatest problems 

for us, is what is, I guess, the new normal out here. Thank you 

very much, and I yield back. 

Mr. CONYERS. I want to thank you very much, Judge Gonzalez, 

for your concluding the questions in this hearing. This hearing has 

a certain poignancy because it may be our final hearing in the 

111th Congress. But we may be coming back next week, Bob, so 

I can’t be conclusive in ensuring you that this will be my last hearing as Chair. 

Mr. GOODLATTE. Mr. Chairman, if you come back, I will come 

back too. And if you will yield, I would like to say that while it is 

indefinite exactly how much longer we will be able to call you Mr. 

Chairman in the official capacity, you will always be Mr. Chairman 

to all of us. You have done a great job as Chairman of this Committee. You have been very fair to the minority, so we look forward 

to reciprocating next year. 

Mr. CONYERS. Thank you so much. And I want to say to these 

seven gentlemen that have been with us since early this morning, 

this may be, in fact, for me personally, one of the most important 

hearings that the Committee has undertaken. And I am already 

talking with Mr. Goodlatte about the possibility of subsequent 

hearings on this same subject in the 112th Congress. And so we 

thank you as sincerely as all of us can and declare these hearings 

adjourned. 

[Whereupon, at 1:48 p.m., the Committee was adjourned.] 

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