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NATIONAL SECURITY LEAKS AND THE LAW 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

JULY 11, 2012 

Serial No. 112–139 

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 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

MARK AMODEI, Nevada 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

JARED POLIS, Colorado 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

JULY 11, 2012 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 2 

The Honorable Robert Lamar Smith, a Representative in Congress from the 

State of Texas, and Chairman, Committee on the Judiciary ........................... 4 

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 5 

WITNESSES 

Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft LLP 

Oral Testimony ..................................................................................................... 10 

Prepared Statement ............................................................................................. 12 

Nathan A. Sales, Assistant Professor of Law, George Mason University 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 17 

Colonel Kenneth Allard, U.S. Army (Ret.) 

Oral Testimony ..................................................................................................... 27 

Prepared Statement ............................................................................................. 29 

Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, 

American University Washington College of Law 

Oral Testimony ..................................................................................................... 32 

Prepared Statement ............................................................................................. 34 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 6 

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 7 

Prepared Statement of the Honorable Robert Lamar Smith, a Representative 

in Congress from the State of Texas, and Chairman, Committee on the 

Judiciary ............................................................................................................... 8 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 8 

(1) 

NATIONAL SECURITY LEAKS AND THE LAW 

WEDNESDAY, JULY 11, 2012 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10 a.m., in room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Smith, Gohmert, Lungren, Forbes, Gowdy, Adams, Scott, Conyers, Johnson, Chu, 

Deutch, and Quigley. 

Staff Present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Arthur Radford Baker, Counsel; Sam Ramer, Counsel; 

Lindsay Hamilton, Clerk; (Minority) Joe Graupensperger, Counsel; 

Aaron Hiller, Counsel; and Veronica Eligan, Professional Staff 

Member. 

Mr. SENSENBRENNER. The Subcommittee will come to order. 

Within the last few months, the American people and the rest of 

the world have become privy to an astonishing number of revelations concerning the secret operations of our Armed Forces and the 

national intelligence agencies. We have learned a Pakistani doctor 

cooperated with U.S. forces in conducting DNA tests to help locate 

Osama bin Laden. We have learned that the President of the 

United States personally decides the human targets of drone 

strikes in other countries by looking at mugshots and brief biographies of targets that we have been told resemble a high school 

yearbook layout. We have learned that the United States, in cooperation with its ally Israel, sabotaged the Iranian nuclear campaign with the Stuxnet virus. We have learned that Obama expanded the assault even after the virus accidentally made its way 

into the Internet in 2010. We have learned that the United States 

sabotaged Iranian computers with the Flame virus. We have 

learned that the CIA takedown of an al Qaeda plot to blow up the 

U.S.-bound airliner involved an international sting operation with 

a double agent tricking terrorists into handing over a prized possession, a new bomb reportedly designed to slip through airport security. We have also learned that the double agent belonged to another ally, Saudi Arabia. 

We didn’t learn of these secret programs and details through 

spies or other countries’ diplomats or even from the WikiLeaks 

scandal. We learned of these secrets from the pages of The New 

2 

York Times and other newspapers. The editors of The New York 

Times and other newspapers have publicly claimed many times 

that they see themselves as having a duty to inform. 

During the Bush administration, The New York Times and other 

newspapers savaged President Bush and the intelligence community for its tactics in the war on terror. How times have changed. 

Here is a sample of the headlines that accompanied these latest national security leaks: ‘‘Obama Order Sped Up Wave of Cyberattacks 

Against Iran’’—The New York Times; ‘‘Secret ‘Kill List’ Proves a 

Test of Obama’s Principles and Will’’—New York Times; ‘‘Stuxnet 

Was the Work of U.S. And Israeli Experts, Officials Say’’—Washington Post. These are not the type of critical headlines that pursued Bush administration officials. 

Not only has the Administration not complained about these articles, but officials made a planner, operator, and commander of 

SEAL Team 6 who killed Osama bin Laden available to a Hollywood director and screenwriter working on a movie about this successful raid, according to Pentagon and CIA records obtained by 

Judicial Watch, who got the information through FOIA requests. 

The four leaders of the Intelligence Committees have condemned 

these leaks. Senator Feinstein said that she was deeply disturbed 

by these leaks and wants an investigation, and she is right. The 

Attorney General has deployed two U.S. attorneys who report to 

him to investigate the leaks and to determine whether anyone from 

the Administration should be prosecuted. Today we will have a look 

at the law and discuss the options available for investigating these 

disclosures to the press. 

These leaks threaten our national security, our relations with 

foreign governments, and continued candor from embassy officials 

and foreign sources. They already have had profound consequences. 

The doctor who cooperated with us was sentenced to 30 years in 

prison by Pakistani authorities. Intelligence sources have told us 

that the Saudi Arabian double agent was exposed because of news 

reports. 

As long as there have been governments, there has been information protected by those governments. This country needs its secrets 

kept, regardless if the news media wants to expose them to condemn a President or to praise him. This isn’t simply about keeping 

the government’s secrets secret. This is about the safety of American personnel overseas at all levels, from the foot soldier to the 

Commander in Chief. 

It is now my pleasure to recognize for his opening statement the 

Ranking Member of this Subcommittee, the distinguished gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

And today we will examine issues related to leaks of sensitive 

government information, sometimes classified, sometimes not classified. This hearing is motivated in no small part by a recent spate 

of stories in the news that appear to have—as their basis—leaked 

information from within the Federal Government. These stories include details of cyber warfare in Iran, a covert mission to thwart 

a suicide bomber bound for the United States, and the Administration’s process of nominating individuals as targets for drone strikes 

in Yemen and in Pakistan. 

3 

Although these stories may have given some Members a renewed 

sense of urgency, it is important to put them in context. There are 

two points to be made here: First, the Obama administration’s 

work to investigate and prosecute suspected leaks is without peer. 

This Administration has prosecuted more leaks than all previous 

Presidential administrations combined. Attorney General Eric 

Holder has appointed two U.S. attorneys to lead the Federal investigations into recent leaks. The Director of National Intelligence, 

James Clapper, has issued new rules to deter future incidents; 

among them, rules authorizing the inspector general of the defense 

community to conduct an independent administrative investigation 

even if the Justice Department declines to bring criminal charges 

in a specific case. 

Second, the problem of leaks in the Federal Government is not 

new. There were spies at the founding of the Republic. We have 

grappled with this problem in Federal law since the First World 

War. In the modern sense of leaking information to the press, we 

have had to work to balance our security interests with the interests of a free and robust press for the better part of 50 years. 

These problems are not amenable to easy solutions, particularly 

in light of the fact that we do not always agree on the scope of the 

problem. We all want to protect national security so that we can 

keep our citizens safe. But we cannot disregard the right of American citizens in a system of self-governance, a system that requires 

the public to be well-informed. 

When a government official leaks sensitive information to the 

press that reveals the government is engaged in unlawful activity, 

do we simply leave it up to the same government’s discretion as to 

whether to prosecute the person for possibly serving the public’s interest? What about leaks of information that do not implicate any 

national security interest at all? Overclassification is an enormous 

problem in the Federal Government, and current law does not distinguish between leaking classified information with the intent to 

harm the United States and blowing the whistle on unlawful activity that never should have been classified in the first place. Congress may soon consider legislation that attempts to address these 

shortcomings in existing law. 

As we move forward, we must be careful. Any decision to limit 

what the public officials and private citizens may say about sensitive government information must be balanced against the important issues of free speech, due process, and the fact that some of 

this information may reveal improper or even criminal government 

actions. 

Just as the authors of the Espionage Act of 1917 did not anticipate our problems with leaks in the digital information age, there 

may be unforeseen consequences of any changes we make today. It 

is easy to overreact to news stories, particularly in an election year, 

but we must be careful before we limit what people say, particularly with respect to the operation of our government. 

Thank you, Mr. Chairman. I yield back the balance of my time. 

Mr. SENSENBRENNER. Thank you. 

The Chair of the full Committee, the gentleman from Texas, Mr. 

Smith. 

4 

Mr. SMITH. Thank you, Mr. Chairman. And, Mr. Chairman, I associate myself with your opening statement. 

Mr. Chairman, recent leaks of highly classified information pose 

a serious threat to our national security and put the lives of Americans and our allies at risk. National security experts from both Republican and Democratic administrations have expressed outrage 

over the leaks and the effect they have on ongoing and future intelligence operations. 

What sets these leaks apart from other leaks we have seen is 

that the media reports that many of these have come from highly 

placed Administration officials. If true, this means that Administration officials are weakening our national security and endangering American lives. 

National security operational details exist to meet the covert 

needs of the intelligence community that protects the American 

people. As FBI Director Mueller recently testified, quote, ‘‘Leaks 

such as this threaten ongoing operations, puts at risk the lives of 

sources, makes it much more difficult to recruit sources, and damages our relationships with our foreign partners. And, consequently, a leak like this is taken exceptionally seriously, and we 

will investigate thoroughly.’’ Director Mueller went on to say, 

quote, ‘‘I don’t want to use the word ’devastating,’ but this will 

have a huge impact on our ability to do our business. Your ability 

to recruit sources is severely hampered, so it also has some longterm effects, which is why it is so important to make certain that 

the persons who are responsible for the leak are brought to justice,’’ 

end quote. 

News publications that publicize classified information claim to 

promote increased government transparency, but I wonder if their 

real motivation is self-promotion and increased circulation. They 

claim to be in pursuit of uncovering government wrongdoing but 

dismiss any criticism that their actions may be wrong or damaging 

to our country. 

These leaks have also resurrected debate on First Amendment 

protections afforded to media publications. What are the boundaries of free speech? How do we balance this freedom with the government’s need to protect certain information? 

I hope the Justice Department will bring the full force of the law 

against those who leak protected information. We can judge whether the Administration is willing to conduct a serious and objective 

investigation by considering two factors: one, whether they will 

hold Administration officials responsible; and, two, whether the investigation is completed before the general election. Otherwise, the 

American people rightly can conclude that the Administration is 

hiding the truth and has endangered American security and American lives. 

Mr. Chairman, finally, I want to say that the Administration’s 

track record is not encouraging. It was pointed out by the Ranking 

Member of the Subcommittee a minute ago that the Administration 

has, in fact, initiated a number of investigations of leaks, but very 

little, if anything, has coming out of those investigations. I hope 

this time it will be different. 

Thank you, Mr. Chairman. I yield back. 

5 

Mr. SENSENBRENNER. The Ranking Member of the full Committee, the distinguished gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Sensenbrenner. 

And good morning to our witnesses. 

This is a difficult matter, national security leaks and the law. My 

good friend from Texas, the Chair of this full Committee, wonders 

if self-promotion played a role and if there were prominent members of the Administration involved in the leaks. Well, that is what 

we are here to try to determine. He hasn’t mentioned any names, 

so I presume he is not sure who is doing it. We have our own investigative capacity, and so why don’t we inquire ourselves? 

We also have the regular power of subpoena. If there is somebody he thinks we ought to talk to, we should talk to them. If there 

is somebody that isn’t cooperating with us in this investigation, 

which is a legitimate subject for discussion, we should subpoena 

them. 

Mr. SMITH. If the gentleman will yield, I will take the gentleman 

up on his offer immediately. And I suspect the Chairman of the 

Subcommittee will, as well. If you are going to support our efforts 

to subpoena individuals from the Administration, I couldn’t ask for 

more. 

Mr. CONYERS. Well, that is why I am suggesting it. 

Mr. SENSENBRENNER. If the gentleman will yield, if he will submit to the Subcommittee Chair a list of people that he wishes subpoenaed and the full Committee Chair does the same, I think we 

can have a good, bipartisan subpoena-issuing session. 

Mr. CONYERS. Yeah, but the only problem is that, at this point, 

neither of you have anybody that you want to subpoena, I presume, 

and neither do I. 

Mr. SMITH. Oh, I will be happy to come up with some names. 

Mr. CONYERS. Well, okay. Well, that is great. You know, we could 

have had this discussion before 10 a.m. on the 11th day of July. 

But right now this hearing is going on without anybody knowing 

who they would like to talk with. And now we have all agreed to 

pull together three bipartisan lists. I am very sure the former attorney general from California, who is a Member of the Committee, 

he could easily come up with a list. 

Mr. LUNGREN. I will give you some right now, if you would like 

to. How about all the people that were in the Situation Room—— 

Mr. CONYERS. Wait a minute. I didn’t yield. 

Mr. LUNGREN [continuing]. Identified by The New York Times? 

Mr. CONYERS. Just a moment, sir. 

Mr. SENSENBRENNER. The time belongs to the gentleman from 

Michigan. 

Mr. CONYERS. Yeah. 

We can get you time. 

I am not here requesting names. I am here pointing out that we 

don’t, apparently, have any names. Now, all of a sudden, we have 

a bipartisan panel, everybody is willing to produce names. And, by 

the way, I didn’t say that I had any names myself. You are the 

ones running the Committee and saying that this is an important 

subject. And I agree with you. But I just want to describe the nature of the setting as this starts out with. 

6 

Now, let me point out just a couple things. We must react to concerns about leaks in ways that do not undermine the openness and 

transparency of government. I think we can start off there as a beginning point. I think I would like to hear some discussion about 

the issue of overclassification of documents in the Federal Government. I think that is worth our attention. 

And then, a law passed in 1917 needs to be looked at again. 

What went on as espionage in the early part of the 20th century 

I don’t think has much relevance now. And I think there is a lot 

of work for the Committee on the Judiciary and this Subcommittee 

in particular to work on. 

Mr. SENSENBRENNER. The gentleman’s time has expired, and, 

without objection, he is given 2 additional minutes. 

Mr. CONYERS. Well, I thank you, Chairman Sensenbrenner. And 

I won’t use the 2 minutes. 

But I will just conclude by saying, when we look at the issue of 

leaks, let’s look at them across a period of time that includes all 

the former as well as the current Administration. 

And I thank you for your generosity, and I return the balance of 

the time. Thank you very much. 

Mr. SENSENBRENNER. Thank you. 

Without objection, all Members’ opening statements will appear 

in the record at this point. 

[The prepared statement of Mr. Sensenbrenner follows:] 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security 

Within the last few months, the American people, and the rest of the world, have 

become privy to an astonishing number of revelations concerning the secret operations of our armed forces and national intelligence agencies. We have learned that 

a Pakistani doctor cooperated with U.S. forces in conducting DNA tests to help locate Osama Bin Laden. We have learned that the President of the United States 

personally decides the human targets of drone strikes in other countries, by looking 

at mug shots and brief biographies of targets that, we have been told, ‘‘resembled 

a high school yearbook layout.’’ 

We have learned that the United States, in cooperation with its ally, Israel, sabotaged the Iranian nuclear campaign with the Stuxnet virus. We have learned that 

Obama expanded the assault even after the virus accidentally made its way onto 

the Internet in 2010. We have learned that the United States sabotaged Iranian 

computers with the ‘‘Flame’’ virus. 

We have learned that the CIA takedown of an Al Qaeda plot to blow up a U.S.- 

bound airliner involved an international sting operation with a double agent tricking terrorists into handing over a prized possession: a new bomb purportedly designed to slip through airport security. We have also learned that the double-agent 

belonged to another ally, Saudi Arabia. 

We didn’t learn of these secret programs and details through spies, or other countries’ diplomats, or even from the Wikileaks scandal. The world learned of these secrets from the pages of the New York Times and other U.S. newspapers. 

The editors of the New York Times, and other newspapers, have publicly claimed 

many times that they see themselves as having a duty to inform. During the Bush 

Administration, the New York Times and other newspapers savaged President Bush 

and the intelligence community for its tactics in the War on Terror. 

How times have changed. Here is a sample of the headlines that accompanied 

these latest national security leaks: 

• ‘‘Obama Order Sped Up Wave of Cyberattacks Against Iran’’—NY Times 

• ‘‘Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will’’—NY Times 

• ‘‘Stuxnet was work of U.S. and Israeli experts, officials say’’—Washington 

Post 

7 

These are not the type of critical headlines that pursued Bush Administration officials. Not only has the Administration not complained about these articles, but officials made ‘‘a planner, operator and commander of SEAL Team Six’’ who killed 

Osama bin Laden available to a Hollywood director and screenwriter working on a 

movie about the successful raid, according to Pentagon and CIA records obtained by 

Judicial Watch, who got the information through FOIA requests. 

The four leaders of the Intelligence Committees have condemned these leaks. Senator Dianne Feinstein said that she was deeply disturbed by these leaks, and wants 

an investigation. I agree. 

The Attorney General has deployed two U.S. Attorneys, who report to him, to investigate the leaks and to determine whether anyone from the Administration 

should be prosecuted. Today, we will take a look at the law and discuss the options 

available for investigating these disclosures to the press. 

These leaks threaten our national security, our relations with foreign governments, and continued candor from embassy officials and foreign sources. They have 

already had profound consequences. The doctor who cooperated with us was sentenced to 30 years in prison by Pakistani authorities. Intelligence sources have told 

us that the Saudi-Arabian double-agent was exposed because of news reports. 

As long as there have been governments, there has been information protected by 

those governments. This country needs its secrets kept, regardless if the news media 

wants to expose them to condemn a president, or to praise him. 

This isn’t simply about keeping government’s secrets secret. This is about the 

safety of American personnel overseas at all levels, from the foot soldier to the Commander-in-Chief. 

[The prepared statement of Mr. Scott follows:] 

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, 

Subcommittee on Crime, Terrorism, and Homeland Security 

Today, we will examine issues related to the leaks of classified information. This 

hearing is motivated, in no small part, by a recent spate of stories in the news that 

appear to have their basis in information leaked from within the federal government. These stories include details of cyberwarfare in Iran, a covert mission to 

thwart a suicide bomber bound for the United States, and the Administration’s process of nominating individuals as targets for drone strikes in Yemen and Pakistan. 

Although these stories may have given some members a renewed sense of urgency, it is important to put the problem into context. There are two points to make 

here. 

First, the Obama Administration’s work to investigate and prosecute suspected 

leaks is without peer. This Administration has prosecuted more leaks than all previous presidential administrations combined. Attorney General Eric Holder has appointed two U.S. attorneys to lead the federal investigations into the recent leaks. 

Director of National Intelligence James Clapper has issued new rules to deter future 

incidents—among them, rules authorizing the Inspector General of the Intelligence 

Community to conduct an independent administrative investigation even if the Justice Department declines to bring criminal charges in a specific case. 

Second, the problem of leaks in the federal government is not new. There were 

spies at the founding of the Republic. We have grappled with this problem in federal 

law since the First World War and, in the modern sense of ‘‘leaking’’ information 

to the press, we have worked to balance our security with the interests of a free 

and robust press for the better part of 50 years. 

These problems are not amenable to an easy solution, particularly because we do 

not always agree on the scope of the problem. We all want to protect national security so that we can keep our citizens safe. But we cannot disregard the right of 

American citizens to a system of self-governance—a system that requires the public 

to be well-informed. 

When a government official leaks classified information to the press that reveals 

the government is engaged in unlawful activity, are we to simply leave it up to that 

same government’s discretion whether to prosecute that person for possibly serving 

the public’s interest? 

What about leaks of information that do not implicate any national security interests at all? Over-classification is an enormous problem in the federal government, 

and current law does not distinguish between leaking classified information with an 

intent to harm the United States, and blowing the whistle on unlawful activity that 

never should have been classified in the first place. 

8 

Congress may soon consider legislation that attempts to address these shortcomings in existing law. As we move forward, we must be careful. Any decision to 

limit what public officials and private citizens may say about the government must 

be balanced against important issues of free speech and due process. Just as the 

authors of the Espionage Act of 1917 did not anticipate our problems with leaks of 

digital information to a national press, there may be unforeseen consequences to 

any changes we make today. 

It is easy to overreact to a news story, particularly in an election year—but we 

must be careful before we limit what people say, particularly with respect to the 

operation of our government. 

[The prepared statement of Mr. Smith follows:] 

Prepared Statement of the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary 

Recent leaks of highly classified information pose a serious threat to our national 

security and put the lives of Americans and our allies at risk. National security experts from both Republican and Democratic administrations have expressed outrage 

over the leaks and the effect they have on ongoing and future intelligence operations. 

What sets these leaks apart from other leaks we have seen is that the media reports that many of these have come from highly-placed Administration sources. If 

true, this means that Administration officials are weakening our national security 

and endangering American lives. 

National security operational details exist to meet the covert needs of the intelligence community that protects the American people. 

As FBI Director Mueller recently testified: ‘‘. . . leaks such as this threaten ongoing operations, puts at risk the lives of sources. Makes it much more difficult to recruit sources and damages our relationships with our foreign partners. And consequently a leak like this is taken exceptionally seriously and we will investigate 

thoroughly.’’ 

Director Mueller went on to say ‘‘I don’t want to use the word devastating, but 

[this will] have a huge impact on our ability to do our business . . . your ability 

to recruit sources is severely hampered . . . So it also has some long-term effects, 

which is why it is so important to make certain that the persons who are responsible for the leak are brought to justice.’’ 

News publications that publicize classified information claim to promote increased 

government transparency. But I wonder if their real motivation is self-promotion 

and increased circulation. 

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. 

These leaks have also resurrected debate on First Amendment protections afforded to media publications. What are the boundaries of free speech? How do we 

balance this freedom with the government’s need to protect certain information? 

I hope the Justice Department will bring the full force of the law against those 

who leaked protected information. 

We can judge whether the Administration is willing to conduct a serious and objective investigation by considering two factors: (1) whether they will hold Administration officials responsible, and (2) whether the investigation is completed before 

the general election. 

Otherwise, the American people rightly can conclude that the Administration is 

hiding the truth and has endangered American security and American lives. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Ranking Member, Committee on 

the Judiciary, and Member, Subcommittee on the Constitution 

As we examine the question of national security leaks and the law in today’s hearing, we should keep in mind several considerations about historical context, highprofile leaks, and the ways in which we respond to them as a policy matter. 

Leaks of sensitive information by officials in the federal government have taken 

place since the founding of the Republic. Within any system of government, there 

9 

are officials who are motivated by varying considerations to disclose inside information. Concerns about leaks are not new. 

In our system of government, the people have a right to know what their government is doing and why. Public oversight gives the government powerful incentive 

to act effectively, responsively and lawfully. 

On the other hand, the people also have an expectation that the government will 

protect our national security. In order to keep the country safe, the government 

must have the ability to deliberate with an appropriate degree of confidentiality. 

In reacting to national security leaks, we must be careful not to tip the balance 

between these two competing interests. If we overreact, we risk reaching a point 

where so much of our government is shrouded with secrecy that our citizens cannot 

effectively know what is being done in their name. 

Similarly, when we consider whether to change our laws to better protect the government from national security leaks, we must take care with respect the disclosure 

of information that never should have been classified in the first place. 

I think most of us would readily acknowledge that our government has a problem 

with overclassification. Some government officials have themselves suggested that 

about half of all classified information is unnecessarily classified. If we are to seriously consider taking a stronger stand against leaks, we must carefully distinguish 

between information that is classified in order to protect national security and information that is classified for other reasons, such as to protect someone from embarrassment or legal scrutiny, or simply because it is easier to make information secret 

than to share it with the public. 

Finally, I want to note for the record that the Obama Administration has already 

prosecuted more leak-related cases than were brought under all previous presidents 

combined. There can be no doubt that President Obama and Attorney General Eric 

Holder take national security and national security leaks as seriously as possible. 

In addition, the Director of National Intelligence has announced that the intelligence community will implement new rules to deter future leaks—requiring additional polygraph tests for staff, and giving the Inspector General of the Intelligence 

Community new powers to launch an independent investigation. 

These steps seem to me a measured, appropriate response to recent events. Congress must exercise similar discretion as it moves to handle national security leaks 

in the future. 

Mr. SENSENBRENNER. And, without objection, the Chair is authorized to declare recesses during votes on the House floor. 

It is now my pleasure to introduce today’s witnesses. 

Ken Wainstein is a partner in the law firm of Cadwalader, 

Wickersham & Taft, where his practice focuses on corporate internal investigations. He is also an adjunct professor at Georgetown 

Law School. Mr. Wainstein served as an assistant U.S. attorney in 

both the Southern District of New York and in the District of Columbia. Later, he served as the U.S. attorney in D.C. and then was 

Assistant Attorney General for National Security. He served as FBI 

Director Robert S. Mueller’s chief of staff and then as President 

George W. Bush’s homeland security advisor. He received his undergraduate degree from the University of Virginia and his law degree from the University of California at Berkeley. 

Mr. Nathan Sales is an assistant professor of law at the George 

Mason University School of Law. Before coming to George Mason, 

Sales was Deputy Assistant Secretary for Policy Development in 

the U.S. Department of Homeland Security. He previously served 

as counsel and senior counsel in the Office of Legal Policy at the 

U.S. Department of Justice. He was the John M. Olin Fellow at 

Georgetown University Law Center in 2005 and 2006. From 2003 

through 2005, he practiced at the Washington, D.C., law firm of 

Wiley, Rein, and Fielding. Professor Sales clerked for the Honorable David B. Sentelle of the U.S. Court of Appeals for the D.C. 

10 

Circuit. He received his undergraduate degree from Miami University and his J.D. from Duke. 

Colonel Ken Allard is a commentator on foreign policy and security issues. For more than a decade, he was a featured military analyst on NBC News, MSNBC, and CNBC. In 2006, he joined the 

faculty at the University of Texas, San Antonio, as an executive in 

residence and senior lecturer in management. His military career 

included overseas service as an intelligence officer as well as tours 

of duty as an assistant professor at West Point, special assistant 

to the Army chief of staff, and dean of students at the National 

War College. He received his undergraduate degree from Lycoming 

College, his MPA from Harvard, and his Ph.D. In international security from the Fletcher School of Law and Diplomacy at Tufts. 

Professor Stephen Vladeck is a professor of law and the associate 

dean for scholarship at American University Washington College of 

Law. He is also a Supreme Court fellow at The Constitution 

Project. He is the senior editor of the peer-reviewed Journal of National Security Law and Policy, a senior contributor to the Lawfare 

blog, and a member of the Executive Committee of the Section on 

Federal Courts of the Association of American Law Schools. Previously, he was an associate professor of law at the University of 

Miami School of Law. Professor Vladeck clerked for the Honorable 

Marsha S. Berzon on the U.S. Court of Appeals for the Ninth Circuit and the Honorable Rosemary Barkett on the U.S. Court of Appeals for the 11th Circuit. He received his bachelor of arts from 

Amherst and his J.D. from Yale Law School. 

The witnesses’ full statements will be entered into the record in 

their entirety, so I ask that each of you summarize in 5 minutes 

or less. And to help you stay within the time limit, there is a timing light on your table. And you all know what that means. 

So I now recognize Mr. Wainstein. 

TESTIMONY OF KENNETH L. WAINSTEIN, PARTNER, 

CADWALADER, WICKERSHAM & TAFT LLP 

Mr. WAINSTEIN. Chairman Sensenbrenner, Ranking Member 

Scott, Chairman Smith, Ranking Member Conyers, and distinguished Members of the Subcommittee, it is an honor to appear before you today and to testify alongside my distinguished copanelists. 

I spent much of my government career in the national security 

world, where I saw the vital role that sensitive information plays 

in our national security operations and how those operations can 

be put in jeopardy whenever that information is compromised. 

The problem of national security leaking has come to the fore recently because of several particularly damaging leaks over the last 

few months. While these recent leaks are alarming, the reality is 

that government leaking has been happening for as long as government has existed, and every American administration since the 

founding of the Republic has suffered its share of leaks. 

Leaks of national security information can compromise all aspects of our national security program. They can compromise specific national security operations, as happened in 2006 with the disclosure of the Treasury Department’s secret program for tracking 

terrorist finances. They can compromise human sources, as apparVerDate Aug 31 2005 17:36 Oct 24, 2012 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\071112\74977.000 HJUD PsN: 74977
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ently happened when it was recently reported that a Saudi source 

had helped to foil al Qaeda’s recent airplane bombing plot. And 

keep in mind that whenever a source’s identity or existence is 

leaked, it not only negates the effectiveness of that particular 

source, it also undermines our ability to develop and cultivate 

sources in the future. 

Leaks can also compromise our methods, as apparently happened 

with the recent disclosure of our alleged use of malware to attack 

the Iranian nuclear weapons program. They can certainly endanger 

our government personnel, like the CIA chief of station who was 

publicly outed and then killed by terrorists in Athens in the 1970’s. 

And, importantly, they can weaken our alliances, those operational 

relationships between us and foreign services that are so vital to 

our national security operations around the world. 

In short, leaks can be severely damaging to our efforts to protect 

our country. 

Now, there is a wide range of different types of leaks, but the 

most common scenario these days is the leak of sensitive information to the press by a government official, an official whose motivation may range from base self-interest to a laudable desire to blow 

the whistle on wrongdoing and change government operations for 

the better. 

I share Congress’ concern about the need to enhance our defenses 

against such illicit disclosures. An important part of that effort is 

ensuring that in the appropriate cases we investigate and we prosecute those who disclose our operational secrets. As you know, however, the Justice Department does not have a lengthy record of successful leak prosecutions. That thin track record is not for a lack 

of trying, however. Rather, it is the result of myriad obstacles that 

stand in the way of building a prosecutable media leak case. 

Those obstacles are many, and they include the following: First, 

it is very difficult often to identify the leaker in the first place, 

given the large universe of people who are often privy to the sensitive information that gets disclosed. Second, our leak investigations operate under strict limitations in the Justice Department’s 

internal regulations—limitations that are in place for all the right 

First Amendment reasons. And, finally, even when investigators 

can get by those challenges and the leaks are identified, the agency 

whose information was compromised is often reluctant to proceed 

with a prosecution out of fear that trying the case in public will 

both highlight the compromised information and disclose further 

sensitive information that it wants to keep confidential. 

For all these reasons, leak investigations and leak cases are exceptionally challenging, and the question is whether any of these 

obstacles can or should be addressed by changes to the governing 

legislation. I agree with those who say that our current espionage 

statues are cumbersome and antiquated, and I would support Congress’ effort to reform them. Keep in mind, however, that this reform effort will be very complicated. Because it directly implicates 

the tension between national security and our cherished First 

Amendment values, legislating in this area is challenging and inevitably raises a host of complex issues. 

For example, consideration of a law that would flatly prohibit 

and punish any disclosure of classified information will require exVerDate Aug 31 2005 17:36 Oct 24, 2012 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\071112\74977.000 HJUD PsN: 74977
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amination of the problem of overclassification of government information. Also, any effort to revise the Espionage Act will lead to a 

debate whether the person who receives and publishes leaked information, i.e., the press, should be subject to the same criminal exposure as the government official who leaked it in the first place. 

These are certainly complex issues. Given the damage caused by 

the continued leaks and the inadequacy of our current leak legislation, however, it is important that Congress take these issues on 

and consider an appropriate legislative response. 

No matter where one stands on the political spectrum, we should 

all recognize that the unchecked leaking of classified and sensitive 

information can cause grave harm to our national security. Congress plays an important role in addressing that problem, and I applaud the Committee for the initiative it is showing with today’s 

hearing. 

I appreciate your including me in this important effort, and I 

stand ready to answer any questions you may have. Thank you, 

Mr. Chairman. 

Mr. SENSENBRENNER. Thank you. 

[The prepared statement of Mr. Wainstein follows:] 

Prepared Statement of Kenneth L. Wainstein, Partner, 

Cadwalader, Wickersham & Taft LLP 

Chairman Sensenbrenner, Ranking Member Scott and distinguished Members of 

the Subcommittee, thank you for inviting me to testify before you today about the 

issue of national security leaks. 

My name is Ken Wainstein, and I am a partner at the law firm of Cadwalader, 

Wickersham & Taft. Prior to my leaving the government in January of 2009, I was 

honored to work for many years with the men and women of the Intelligence Community and others who defend our national security against our adversaries. I am 

also honored to appear today alongside my co-panelists, who bring a wealth of experience to a discussion of this critically important issue. 

Since the attacks of September 11, 2001, I have spent much of my professional 

career in the national security world, where sensitive sources and methods are the 

lifeblood of our national security operations. Whether it was source information that 

factored into decision making at the White House or intelligence from a wiretap we 

secured at the Justice Department, I have seen the vital role that sensitive information plays in our national security operations and how those operations can be put 

in jeopardy whenever that information is compromised. And unfortunately, that information is compromised all too frequently. 

The problem of national security leaking has come to the fore recently because 

of several particularly damaging leaks over the past few months. While these leaks 

are alarming, they are sadly only the most recent manifestations of an age-old problem. The reality is that government leaking has been happening for as long as there 

has been government, and every American administration since the founding of the 

Republic has suffered its share of leaks. 

While some leaks may be innocuous or simply embarrassing, others can be severely damaging to our national security. Leaks of national security information can 

compromise all aspects of our national security program, including: 

• National security operations: From the 1942 newspaper report that the U.S. 

had broken the Japanese military code to the 2006 disclosure of the Treasury 

Department’s secret program for tracking terrorist finances, we have repeatedly seen vital operations put in jeopardy by careless or malicious leaks. 

• Human sources: A key element of any intelligence program is the source— 

the human being who is positioned to provide intelligence on an adversary 

and its plans and intentions. Whenever a source’s identity is leaked from the 

government—as apparently happened when it was reported that a Saudi 

source had played a central role in the foiling of Al Qaeda’s recent airplanebombing plot—it not only negates the effectiveness of that source; it also undermines our ability to develop other sources. 

13 

• Methods: Leaks about our methods tip our hand to our adversaries and give 

them the opportunity to adapt their defenses against those methods. A classic 

example is the recent disclosure of our alleged use of malware to attack the 

Iranian nuclear weapons program. 

• Government personnel: Obviously, leaks can also prove dangerous or fatal to 

our personnel in sensitive positions, as was tragically demonstrated by the 

murder of the CIA’s Chief of Station in Athens by terrorists in the 1970’s 

after his outing by a former CIA employee. 

• Alliances: Leaks from within our government can undermine those relationships with foreign services that are so vital to our national security, especially 

in relation to our effort against international terrorists. 

• The integrity of government service: Finally, it’s worth noting that government employees with clearances give a personal promise that they will protect the government’s classified information. The integrity of public service is 

diminished whenever that promise is broken. 

In assessing why leaks happen and what should be done to prevent them, we 

have to examine the reasons why people leak in the first place. While there are a 

range of motives behind different leaks and leakers, I will put those motives into 

two general categories for discussion. The first category includes those instances 

where a government official passes sensitive information to a foreign government or 

other foreign power—the classic espionage scenario with spies like Aldrich Ames or 

Robert Hanssen who betray their country for money, out of resentment against their 

government or agency, or out of misplaced loyalty or affinity for another country. 

We all condemn the traitorous actions of these classic spies, and the Justice Department has mounted strong prosecution efforts whenever such spies have been identified over the years. 

The second, and more common, scenario is the leak of sensitive information to the 

press by a government official whose motive may range from base self-interest to 

a laudable whistleblower’s desire to change government operations for the better. 

While I appreciate that some of those responsible for media leaks—i.e. the ‘‘whistleblowers’’—may genuinely feel they are acting in the country’s best interests, I share 

the concern expressed by many in Congress about the need to enhance our defenses 

against such disclosures. An important part of that effort is ensuring that, in the 

appropriate cases, we investigate and prosecute those who disclose our operational 

secrets. 

As you know, however, the Justice Department does not have a lengthy record 

of successful leak prosecutions. While it has brought many strong espionage cases 

over the years, there have been very few prosecutions for leaks to the media. 

That thin track record is not for lack of effort on the part of the investigators and 

prosecutors. Rather, it is a result of the myriad obstacles that stand in the way of 

building a prosecutable media leak case. Those obstacles are many, and they include 

the following: 

First, it is often very difficult to identify the leaker, given the large universe of 

people who often are privy to the sensitive information that was disclosed. It is not 

uncommon for many people to be read into the most highly-classified program or 

to be recipients of intelligence derived therefrom—a problem which has only gotten 

worse with the increased integration and information-sharing we have seen in the 

intelligence and law enforcement communities since the 9/11 attacks. 

Second, our leak investigations operate under the limitations in the Justice Department’s internal regulations, which make it difficult to obtain information from 

the one party who is in the best position to identify the leaker—the member of the 

media who received the leaked information. These regulations have been in place 

for years, and serve as a procedural bulwark protecting the vital role of the free 

press in our democracy. These regulations ensure that ‘‘the prosecutorial power of 

the Government [is] not . . . used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues.’’ United States Attorneys’ Manual, Section 9–13.400. The upshot is, however, that an investigator who 

wants to use a subpoena to compel information from a reporter can do so only after 

the Attorney General personally grants his or her permission—a process that has 

resulted in only about two or three dozen subpoenas to the press for source information over the past couple decades. 

Third, even when the leaker is identified, the agency whose information was compromised is often reluctant to proceed with the prosecution. The concern is that 

charging and trying the case will both highlight the compromised information and 

likely result in the disclosure of further sensitive information that may come within 

the ambit of criminal discovery or admissible evidence. While the Classified InforVerDate Aug 31 2005 17:36 Oct 24, 2012 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\071112\74977.000 HJUD PsN: 74977
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mation Procedures Act helps to address this problem, there is always a concern 

about disclosure when a national security crime is prosecuted and brought to a public trial. 

Finally, even if the Justice Department succeeds in identifying and indicting the 

suspected leaker, it can expect to face a vigorous defense. These cases typically feature legal challenges from defense counsel invoking everything from First Amendment principles to allegations of improper classification to arguments that their client’s alleged leak was actually an authorized disclosure within the scope of his or 

her official duties. The Rosen and Weissman case that was dismissed after years 

of litigation is an example of the difficult issues that these cases present. 

For all these reasons, leak cases are exceptionally challenging, and successful 

prosecutions are few and far between. The question for Congress is whether any of 

these obstacles can or should be addressed by changes to the governing legislation. 

I agree with those who find the current espionage statutes cumbersome and antiquated in their approach and terminology, and I would support Congress’ effort to 

reform them. 

This reform effort will be complicated, and will entail some very carefully calibrated lawmaking. Because it directly implicates the tension between national security and our First Amendment values, legislating in this area is challenging and 

raises a host of complex issues. For example, consideration of a law that flatly prohibits and punishes any disclosure of classified information will require examination 

of the problem of over-classification of government information. Similarly, the 

strengthening of legislation targeting government leakers may require an examination of the whistleblower protection acts to ensure that true whistleblowers can get 

their concerns raised and addressed without going to the press. Finally, any effort 

to revise the Espionage Act will lead to a debate whether the person who receives 

and publishes leaked information (i.e. the press) should be subject to the same 

criminal exposure as the government employee who committed the leak. 

These are certainly complex issues, and they will require careful consideration. 

Given the damage caused by the continued leaks and the inadequacy of our current 

leak legislation, however, it is important that Congress take these issues on and 

consider an appropriate legislative response. 

* * * * * 

No matter where one stands on the political spectrum or in the current national 

security policy debates, we should all recognize that the unchecked leaking of sensitive information can cause grave harm to our national security. Congress plays an 

important role in addressing that problem, and I applaud this Committee for the 

initiative it is showing with today’s hearing. 

I appreciate your including me in this important effort, and I stand ready to answer any questions you many have. 

Mr. SENSENBRENNER. Professor Sales? 

TESTIMONY OF NATHAN A. SALES, ASSISTANT PROFESSOR OF 

LAW, GEORGE MASON UNIVERSITY 

Mr. SALES. Thank you. Chairman Sensenbrenner, Ranking Member Scott, Chairman Smith, Ranking Member Conyers, and other 

Members of the Subcommittee, thank you all for inviting me here 

to testify. It is a pleasure to appear before you again. 

I would like to use my testimony to outline some of the legal 

tools the government has available to combat leaks. First, Federal 

courts have held that it is a crime under the Espionage Act for officials to leak classified information to the press. Second, officials 

frequently sign secrecy agreements when they go to work for the 

government, and the Supreme Court has held that these secrecy 

contracts are enforceable. 

Now, these tools are useful, but they are not perfect. As we have 

already heard, the Espionage Act in particular is notoriously vague, 

and Congress might want to consider amending it. 

So let me go into more detail, starting with criminal prosecutions. The basic thrust of the Espionage Act is fairly straightVerDate Aug 31 2005 17:36 Oct 24, 2012 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\071112\74977.000 HJUD PsN: 74977
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forward. It is a crime for officials to, quote, ‘‘reveal information relating to the national defense to any person not entitled to receive 

it.’’ Now, this law, as the name implies, quite plainly applies to 

spies who give secrets to foreign governments. The courts have 

held that it also applies when officials give secrets to the press. 

The leading case is United States v. Morrison. Morrison was a 

naval intelligence officer, and he was convicted of violating the Espionage Act after he gave classified military photographs to a British magazine in 1984. The Fourth Circuit affirmed his conviction, 

squarely holding that the law applies to leakers, not just to spies. 

The reason leakers can be prosecuted, said the court, is because of 

the plain language of the statute. The Espionage Act doesn’t refer 

narrowly to spies; it speaks in broad and comprehensive terms. Nor 

does it contain any exception for leaks to the press. The court also 

emphasized the statute’s purposes. Congress’ goal in 1917 was to 

prevent secrets from falling into the wrong hands. That harm materializes regardless of whether our enemies get their secrets directly from spies or indirectly by reading about it in the newspaper. 

What about the Constitution? The Fourth Circuit rejected the notion that Morrison had a First Amendment right to leak. To hold 

otherwise, quote, ‘‘would be to prostitute the salutary purposes of 

the First Amendment.’’ 

Morrison is such an important precedent because it stands relatively alone. There simply aren’t that many cases applying the Espionage Act to leakers. To this day, Morrison remains the only person ever convicted of leaking classified information to the press, 

though several others have pled guilty to similar charges. In fact, 

over the 100-year lifespan of the Espionage Act, the government 

has only brought charges against leakers nine times. Six of those 

prosecutions have come since President Obama took office in 2009. 

Next, I would like to discuss a lesser-known but still important 

tool for combating leaks: contract law. Sometimes the government 

will get advance notice that an employee or former employee intends to leak classified information. That isn’t just a potential 

crime; it is also a potential breach of contract. This is so because 

intelligence officials typically sign secrecy agreements as a condition of access to classified information. The government can go to 

court to have these contractual obligations enforced. 

Indeed, the Supreme Court and the Fourth Circuit have both 

upheld these sorts of secrecy agreements. The two cases, known as 

Snepp and Marchetti, each involved a former CIA official who 

wanted to publish a book about his time working at the agency. 

Again, the First Amendment is not an obstacle. According to the 

Supreme Court, the government’s interest in preventing leaks is so 

strong, it can restrict officials from revealing classified information 

even without an express contractual requirement to that effect. 

Finally, let me spend a couple seconds talking about how these 

laws might be improved. It is no secret that some of the key terms 

in the Espionage Act are ambiguous. Just what does ‘‘information 

relating to the national defense’’ mean anyway? And who specifically is a ‘‘person not entitled to receive it’’? Judges and academics 

have been hoping that Congress would resolve these and other interpretive mysteries for more than a decade. 

16 

There is another problem with the act. The Espionage Act makes 

it a crime to leak information relating to the national defense, as 

opposed to classified information or properly classified information. 

As a result, the statute has the potential to produce both false 

positives and false negatives. In other words, the law might criminalize some leaks that aren’t really harmful, and it might fail to 

criminalize other leaks that are harmful. 

Here is an example of the false negatives problem, which is probably more severe. Imagine what would happen if somebody leaked 

the U.S. negotiating strategy for ongoing talks over a free trade 

agreement. That information almost certainly doesn’t relate to the 

national defense but might nevertheless be properly classified. Because it doesn’t fall within the four corners of the Espionage Act, 

it might not be unlawful even though such a leak would cause exceptionally grave harm. 

Congress ought to consider, and indeed Congress has in the past 

considered, either tweaking the Espionage Act to resolve these ambiguities or perhaps to enact an entirely new statute. 

Mr. Chairman, thank you again for your time. I would be happy 

to answer any questions. 

Mr. SENSENBRENNER. Thank you very much. 

[The prepared statement of Mr. Sales follows:] 

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Mr. SENSENBRENNER. Let me say that the yellow and red lights 

don’t seem to be working, so I will help the witnesses wrap up. 

And thank you, Professor. You wrapped up without any help. 

Colonel Allard? 


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27 

TESTIMONY OF COLONEL KENNETH ALLARD, U.S. ARMY (RET.) 

Colonel ALLARD. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. Could you please pull the mike a little bit 

closer to you and make sure it is turned on? 

Colonel ALLARD. Thank you, Mr. Chairman. I appreciate your invitation, and also the Members of the Committee. 

Mr. Chairman, on my way here, I had the occasion to stop at 

Midway Airport. And there at Midway Airport they have dedicated 

a certain portion of the terminal to a memorial to Midway. Very 

appropriate. But while there, there is a great quote from Admiral 

Nimitz, who we in Texas are very, very proud of because he was 

the hero of the Battle of Midway. And what he said on that memorial I think is very, very important for us today. He looked back 

at the naval intelligence apparatus at Midway, and he said, the 

fate of the Nation quite literally depended on a few dozen men who 

have devoted their lives and their whole careers in peace and war 

to radio intelligence. That intelligence gave us the edge at Midway. 

It literally meant the difference between life and death and victory 

and defeat. 

The topic which concerns us today is equally vital. The reason 

being, what has just happened is in my lifetime unprecedented. I 

mean, we all have seen leaks. I have been around government for 

the better part of 30 years. If you see government, you see leaks. 

Everyone understands this. And, by the way, it is equally bipartisan and occurs at every level, every Administration. No one is exempt. 

And so if you try to amend the Espionage Act, you have to be 

very, very careful. But I very much associate myself with the idea 

of being extremely reluctant to mess with the law. I think what 

you must do first is look back at the original consensus, going back 

all the way to Philadelphia, between freedom and responsibility, 

particularly, the obligation of those who are being defended to 

make sure those secrets are intact. 

What really concerns me today is that we have seen, as I said, 

something I had never thought I would ever see in my lifetime. 

When the Sanger articles began to appear, when his book appeared, I never thought I would see those revelations ever being 

discussed in the open press. The reason: When you commit industrial espionage against a sovereign power, ladies and gentlemen, 

that is, by definition, an act of war, pure and simple. The key thing 

about intelligence, as Admiral Nimitz said, is that it removes ambiguity. When ambiguity in intelligence removed, armies march and 

navies sail. That is what has just happened. 

With Iran, the Islamic Republic of Iran, they have links to terror 

that other people here are much more expert in than I am. But on 

this very Hill 2 days ago, you heard testimony from General Keith 

Alexander. General Alexander happens to have been my student at 

the National War College. What he said was, ‘‘We are extremely 

vulnerable to any form of terrorism by virtue of cyber means.’’ So 

when you do the same cyber means yourself, you can understand 

how it is sort of—people in a glass houses should not throw stones. 

That is what just happened here. And when you look at that, it 

should bring the Committee up very short, because you know 

28 

what? You have the responsibility of looking at the Espionage Act 

and thinking, can we do anything better with this? 

I have great respect for what this Congress can do in terms of 

investigation. I have been here as a congressional fellow myself. 

Mr. Smith, I do not normally admit that back in Texas. But it is 

true, I was in these halls for two occasions. One was GoldwaterNichols; the second was the Federal Acquisition Streamlining Act 

of 1994. Both those acts were landmark legislation. They were both 

accompanied by a great degree of rigor, intellectual, every other 

way, analytical, to make sure the laws were being looked at, were 

being analyzed correctly. 

With Goldwater-Nichols, defense organization was the oldest 

game in this town. It was looked at time and again, and finally 

people said, we need to address this law, here is why. With the Acquisition Streamlining Act, we looked at 800 laws and said, here 

is how defense procurement can be improved, here is how and why, 

statute by statute. That was done. By the way, that statute that 

was passed in 1994 is still the leading statute for defense procurement today. 

So there is every means and every, I think, incentive for this 

Committee to look very carefully at the Espionage Act. Mr. Conyers, you are absolutely correct, sir. It was passed during the industrial age. We are now in an information age. What do you do 

when you have open source intelligence? 

I defended the Constitution with my life for over 25 years. For 

the last 15, I have been making a living from it, first on NBC News 

and now doing some writing on my own. And I will tell you, I have 

never seen anything remotely like this, where suddenly you have 

the access to information that you have. And so you have to sit 

here and make sense of all this and say, you know what? I have 

only been—one of the statutes we looked at in the 1994 legislation 

was whistleblowing. And guess what? That is extremely important 

to do now, as well. 

The last thing I would say to you is, you all said, be very careful 

about the institutions doing this, because in the case of The New 

York Times, I will tell you right now from personal experience, 

they abuse their position. We see it time and again. What Mr. Sanger did was—I used to work against the KGB, okay? What Mr. 

Sanger did was the equivalent of having a KGB operation being 

run against the White House. 

So when you investigate—which you should. I know how those 

things are done. I know about putting people in somewhat—let me 

put it this fairly: Make sure they are well aware of what their 

rights are, and make very sure of the fact that there is accountability there, first and foremost. That is the way this thing should 

be done, very carefully. 

But more than that, the thing I will just say to you—— 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Colonel ALLARD. And I will tell you one key thing: Make very 

sure that when you look at them, you are looking at this thing from 

the standpoint of the national interest, not the press’ interest. 

Thank you, sir. 

[The prepared statement of Colonel Allard follows:] 

29 

Prepared Statement of Colonel Kenneth Allard, U.S. Army (Ret.) 

Mr. Chairman, Members of the Committee, Ladies & Gentlemen: Thank you for 

the privilege of testifying before this committee. It is an honor for me, a former 

APSA Congressional Fellow, to return from whence I came—something seldom to 

admitted back home in Texas. 

Today’s topic, ‘‘National Security Leaks And The Law’’ is one I can address at several levels. Most of my military career was spent as an intelligence officer, including 

overseas assignments in the Army’s equivalent of the FBI. As an Army Special 

Agent, I investigated the national security crimes enumerated by Title 18, US Code, 

including sabotage, subversion and espionage—all against the deadly serious backdrop of the Cold War. My military career ranged from entry as a draftee to retirement from active duty as a Colonel and Dean of the National War College. Out of 

uniform, I spent nearly a decade as an on-air military analyst for NBC News, MSBC 

and CNBC. My media involvement today is principally as a columnist for blogsites 

ranging from the Daily Caller to the Daily Beast but most recently for the Huffington Post. The author of five books, I am also a featured reviewer for the New 

York Journal of Books (NYJB). 

Based on those experiences, this morning I can suggest to this committee that 

your misgivings about media bias are well-founded and fully shared by your constituents; that ‘media ethics’ is a term often indistinguishable from ‘media self-interest,’ usually in direct support of a pervasive left-wing narrative; and that such selfinterests inevitably trump the interests of national security. In short: Media objectivity has been replaced by media advocacy, even at the expense of national security. Let me briefly cite three specific examples to support that assessment. 

First, I was recently assigned by NYJB to review a new book by New York Times 

reporter David Sanger. Ironically entitled Confront & Conceal (NY: Crown Publishers, 2012), my evaluation as a reviewer is that Mr. Sanger’s book conceals nothing and represents a new low in the profligate revelation and sale-for-profit of the 

most sensitive American military and diplomatic secrets. Sadly this vice is also 

habit-forming, since we have now become accustomed to the anarchy of Julian 

Assange and Wikileaks; and to the repetitive, in-your-face defiance of every defense 

classification by Bob Woodward—both in his Washington Post columns and his 

books. But Mr. Sanger’s book, among other things, reveals that the Obama White 

House orchestrated a deliberate, integrated campaign of industrial espionage 

against Iranian nuclear facilities, including the use of the Stuxnet and Flame viruses. 

The danger of those shocking revelations can hardly be over-stated. Not only is 

industrial sabotage against Iran clearly an act of war, just like a blockade or an 

aerial bombardment; but such headlines also expose the United States to retaliation 

from a country whose links to terror are well-established. As the President’s own 

cyber-czars have repeatedly warned us, the American economy and infrastructure 

are computer-dependent and therefore uniquely vulnerable to retaliatory cyberstrikes. One of the defining features of cyber-war is the absence of a return address 

on a worm, a virus or a well-orchestrated computer hack. Yet Mr. Sanger—systematically penetrating the Obama White House as effectively as any foreign agent— 

removed any conceivable doubt about Stuxnet, Flame or American intentions regarding Iran. I believe that Mr. Sanger’s actions cry out for a painstaking investigation. Did he violate the Espionage Act? If he did, those actions potentially place him, 

his superiors at the New York Times and his publishers at Crown Books in jeopardy 

of forfeiting their liberty and property. Far from advancing our rights as citizens— 

as a free press should—Mr. Sanger deliberately placed his country at significant 

risk for his own profit. He might just as well have knocked over a local bank and 

then claimed a journalistic interest in money supply—his own most of all. 

Ever since the articles profiling Mr. Sanger’s book first appeared in the New York 

Times, the blogosphere has been alive with speculation dominated by one question. 

Was this expose timed deliberately by the NYT to enhance President Obama’s reelection chances? The Times has revealed only that multiple sources helped to 

produce its story. President Obama has publically stated that he finds it ‘‘offensive’’ 

that anyone would dare to suggest ‘‘that my White House would purposely release 

classified national security information.’’ So let me stress for the record that I do 

not know if those leaks were deliberate and, until it investigates for itself, neither 

does this committee. But the rather casual treatment of Top Secret-codeword information has been a constantly recurring theme among people with National Security 

Council experience. I am not naı ̈ve enough to think this problem has been limited 

to the Obama White House—or that Republican officials in previous administrations 

have been blameless. But Mr. Chairman, as an experienced field investigator, I 

30 

would recommend unraveling the current failure chain in the most exacting fashion—while always asking Cicero’s classic question: Cui bono? 

Second, I can also speak from personal experience as a book reviewer about the 

dubious ethics routinely employed by the NYT to advance its own agenda. Basically, 

the Times exploits its dominant position in the news industry to promote the views 

of its own authors and its own agendas. Mr. Sanger’s front-page articles, for example, were closely coordinated with his book’s publication date—the better to insure 

it ‘‘flew off the shelves’’ and increased sales. But so too were those all-important first 

reviews from the few writers allowed prior access to the book. We at the NYJB were 

not among them, even though we offered to sign a pre-release non-disclosure agreement, a common publishing practice. But the NYT does not trust anything it cannot 

control, a position it strengthens still further by publishing its own book reviews. 

Naturally, that position also allows it the luxury of chastising its political enemies, 

particularly when the issues involve national security. Last year, for example, I 

signed a non-disclosure agreement with his publisher to review the book by former 

Secretary of Defense Donald Rumsfeld, Known And Unknown. Exactly as agreed, 

my review appeared at midnight on the book’s publication date—but it was not the 

first. Days earlier, the NYT also reviewed the Rumsfeld book and, not surprisingly, 

trashed it. But their dirty little secret: the NYT had somehow obtained a ‘‘bootleg 

copy’’ of the book from an unscrupulous source—probably paying for the privilege. 

As most insiders in the publishing community know all too well, the NYT will go 

to any lengths to insure that their worldview is trumpeted exclusively from the 

housetops. But those publishers also fear being excluded from the Blue Ribbon of 

publishing—New York Times Best-Seller—so they won’t tell you. I just did of 

course but let me also add the observation that purloining information—either classified or protected by copyright is precisely what the NYT does, as well or even better than my KGB colleagues during the Cold War. 

Third, I have personally experienced what it feels like when the NYT deliberately 

distorts national security information, even to the point of plagiarism. On April 20, 

2008, the NYT published an inflammatory expose: ‘‘Behind Analysts, Pentagon’s 

Hidden Hand’’ by David Barstow. The Times’ article charged that over 70 retired 

officers, including me, had misused our positions while serving as military analysts 

with the broadcast and cable TV networks. The article went on at considerable 

length (7500 words) to suggest that: we had been seduced by privileged access to 

closed-door Pentagon briefings; that some of the military analysts had allowed their 

ties to defense contractors to influence what they later said on TV (there were even 

hints of possible kickbacks); but above all, that the military analysts had conveyed 

to their TV audiences a view of the wars in Afghanistan and Iraq secretly shaped 

by Pentagon propaganda. 

Mr. Chairman, I shall not long detain the committee by repeating information already in your possession, but let me briefly summarize what happened next: 

• The NYT article prompted angry denunciations from 40 House Democrats as 

well as Senators Carl Levin, Hillary Clinton and Barack Obama; 

• In response, investigations were promptly launched by the General Accounting Office, the Federal Communications Commission as well as the Pentagon 

IG; and finally 

• After more than three years, four separate Federal investigations, and the expenditure of at least $2.3M, we were fully exonerated by the DOD IG. That 

agency found no evidence that any Federal law, regulation or instruction had 

been violated, despite the charges leveled by the NYT. 

Equally revealing: The NYT finally published a grudging ‘‘clarification’’—but on 

Christmas Day, deeply buried in an interior section. As the Wall Street Journal 

commented acidly several days later, the original NYT story, ‘‘all fit tidily into the 

narrative that the war was a conspiracy run by a Dick Cheney-Don Rumsfeld shadow government. Michigan Senator Carl Levin and then-Presidential candidates 

Barack Obama and Hillary Clinton called for federal investigations. Well, those investigations have now shown that the liars weren’t at the Pentagon.’’ 

(http://online.wsj.com/articlelemail/SB10001424052970204791104577110642828278 

05lMyQjAxMTAxMDIwNzEyNDcyWj.html?mod=wsjlsharelemail#articleTabs%3D 

article) 

Mr. Chairman, that same WSJ article referred to the book I wrote—Warheads: 

Cable News and the Fog of War, published in 2006 by the US Naval Institute 

Press—18 months prior to the NYT article. From that article’s publication until this 

morning, I have never mentioned the name of its author, David Barstow, recipient 

31 

of the 2009 Pulitzer Prize. However, I have complained, publicly that Mr. Barstow 

neglected to mention even the existence of Warheads in the course of his lengthy 

article. He thereby concealed how my book provided him with a framework that he 

repeatedly acknowledged to me during at least 3–4 hours of telephone interviews 

in early 2008. (I have separately provided the committee’s general counsel with Mr. 

Barstow’s private telephone and cell phone numbers as verification.) Our conversations even began with references to specific pages and chapters in Warheads. 

Yet Mr. Barstow ultimately failed to mention Warheads—or even its existence— 

because to have done so would have fatally undercut what the WSJ later described 

as ‘‘myth-making.’’ I have made these same points in articles that have appeared 

from newspapers (San Antonio Express News) to well-respected blogsites like Real 

Clear Politics. When Mr. Barstow was awarded the Pulitzer, I also complained directly to the Dean of the Columbia School of Journalism, which administers the Pulitzer awards committee. Finally, I also contacted the New York Times public editor 

and publisher: All to no avail. 

Based on these experiences, I can recommend three specific actions to this committee, especially if you are serious about pursuing today’s topic, which extends far 

beyond simple media bias. 

First, it is essential that the Congress take the lead in investigating Mr. Sanger 

and his White House sources. Who leaked the information, who else was involved 

and who conspired to publish that information to a global audience? (which certainly 

included that hostile foreign power known as the Islamic Republic of Iran) Were the 

motivations of those in this failure chain political, economic or ideological? Finally, 

has Title 18 actually been violated and are criminal charges warranted? I suggest 

that this determination is one that Congress cannot delegate elsewhere—certainly 

not to the independent counsels appointed by an Attorney General already found in 

contempt of Congress. 

Second it is vital that such an investigation also be undertaken to test the Espionage Act. Is this act, passed during World War I, still adequate to protect American 

secrets in the 21st century—amidst the information revolution? Even before this 

revolution began, leaking has been a bipartisan sport, practiced so widely as to 

erase the law’s previously bright lines. Its provisions clearly apply to anyone employed by our government or holding a government-issued security clearance. But 

in the brave new world of open-source information, what are the obligations of journalists or even those without security clearances? While espionage is a criminal offense in most countries, some argue that we should not criminalize investigative reporting, that some degree of latitude is essential to protect whistleblowers and the 

usually undefined privilege of the public’s right to know. Bottom line: The Congress 

and this committee must find a new trial balance between freedom and responsibility because the old one has obviously collapsed. 

Third, the Congress clearly owes the Warheads an apology for the actions taken 

in its name and at the direct instigation of some Members still holding office. Not 

only are some of my brothers authentic heroes but all are distinguished veterans 

who did nothing to deserve the ignominy heaped upon them by the New York 

Times—much less potential indictments. Most Americans live in mortal fear of an 

IRS audit. What would they say to four Federal investigations being inflicted on the 

Warheads—each financed by significant outlays from the public treasury? 

My conclusion does not take the form of a specific recommendation to this committee, since there can now be little doubt about media bias. Our citizens simply 

take that bias for granted, considering the New York Times to be one of its more 

extreme examples. So what do we do about it? Last year, I reviewed a fascinating 

book, The Deal From Hell, by James O’Shea, former editor of the Chicago Tribune 

and the Los Angeles Times. (NY: Perseus Books, 2011) Mr. O’Shea makes the sensible point that our media outlets—great and small—depend on popular support, 

just like any other business. As voters, we freely make choices at the polls. Why 

then as information consumers should we not feel free to boycott newspapers when 

we find their actions egregious? Or even to apply those same judgments to companies who use them to send their commercial messages? Such power to reward or 

penalize rests solely in the hands of our citizens: but they need leadership and encouragement. 

In conclusion, Mr. Chairman, I leave you with a quote from one of my favorite 

newspaper characters, that all-wise, practical philosopher named Pogo, who famously said, ‘‘We have met the enemy and he is us.’’ Never more so than here and 

now! 

Mr. SENSENBRENNER. Professor Vladeck? 

32 

TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW 

AND ASSOCIATE DEAN FOR SCHOLARSHIP, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW 

Mr. VLADECK. Thank you, Chairman Sensenbrenner, Ranking 

Member Scott, distinguished Members of the Subcommittee. Thank 

you for the invitation to testify today and in such distinguished 

company. 

I have had the honor of testifying previously alongside Professor 

Sales and Mr. Wainstein, but the fact that we and Colonel Allard 

continue to be called before you and other Committees of the Congress to speak on the topic of national security leaks provides, in 

my view, fairly strong evidence of both the recurring nature of such 

unauthorized disclosures of classified information and the difficulties that generations of lawmakers, lawyers, and I daresay law professors have confronted in trying to address them. 

Thus, although I am sure reasonable people will disagree about 

the politics of aggressively seeking to prosecute those allegedly responsible for the unauthorized disclosure of national security information, I hope to convince you of two related points that should 

transcend the politics of the moment. 

First, national security leaks are in many ways only a symptom 

of the much larger disease that has already been alluded to this 

morning of overclassification, a problem that Congress unquestionably has the power, if not always the inclination, to ameliorate. 

Second, even if this Subcommittee believes that national security 

leaks by themselves are a problem worth a solution and that this 

Administration’s fairly aggressive track record has not been sufficiently aggressive, the primary statute that the Federal Government has thus far used to prosecute alleged leakers, the Espionage 

Act, which we have already been discussing, is terribly ill-suited to 

the task. 

Instead, if Congress wants to pursue reform in this field, it must 

fundamentally revisit the Federal classifications game and, as part 

of that scheme, provide a far more narrowly tailored and carefully 

crafted sanction specifically targeted at government employees who 

intentionally disclose properly classified information to the public 

without any intent to harm our national security. 

Until and unless reforms like these are undertaken, national security leaks will recur regardless of whether a Democrat or a Republican sits in the White House. What is more, given how many 

governmental abuses over the past decade have been publicly exposed only through these kinds of leaks, so long as the classification regime remains in its current form, this may not be an entirely undesirable result. 

I won’t belabor the Members with a long discourse on the pervasiveness of overclassification. Mr. Chairman, my written testimony 

has a little more on this, and certainly we can bring this up in the 

Q&A if it is relevant. I just want to add a couple of brief points 

about what has already been said with respect to the Espionage 

Act. 

So Mr. Wainstein and Professor Sales talked about the age of the 

Espionage Act, the ambiguity of the Espionage Act. I think it is 

also important to elaborate on a point that Mr. Wainstein made: 

The Espionage Act does not focus on the initial party who wrongVerDate Aug 31 2005 17:36 Oct 24, 2012 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\071112\74977.000 HJUD PsN: 74977
33 

fully discloses national defense information. Instead, it applies in 

its terms to anyone who knowingly disseminates, distributes, or 

even retains—I think that is a very important point—retains national defense information to which they are not entitled without 

immediately returning that material to the relevant 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. This is a big 

part of why the act raises such profound First Amendment questions, not because, as Professor Sales suggested, of the First 

Amendment rights of the putative leaker, but because of the First 

Amendment rights of they who retransmit the leak and those of us 

who read about the leak on the pages of The New York Times, The 

Washington Post, and so on. 

Moreover, the potentially sweeping nature of the Espionage Act 

as currently written may inadvertently interfere with Federal 

whistleblower laws. For example, the Federal Whistleblower Protection Act protects the 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 kept secret in the interest of national defense or 

the conduct of foreign affairs. Similar language appears in most 

other Federal whistleblower statutes. 

Finally, the Espionage Act does not deal with the real elephant 

in the room: situations where individuals disclose classified information that should never have been classified in the first place, including information about unlawful government programs and activities. Most significantly, every court to consider the question has 

rejected the availability of a so-called improper classification defense, a claim by the defendant that he could not have violated the 

Espionage Act because the information he is disclosing should not 

have been classified. 

Testifying before the House Permanent Select Committee on Intelligence in 1979, Anthony Lapham, then the general counsel of 

the CIA, described the uncertainty surrounding the Espionage Act 

as the worst of both worlds. As he explained, quote, ‘‘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 serve to deter perfectly 

legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.’’ 

Whatever one’s views of the national security leaks, Mr. Chairman, Lapham’s central critique drives home why, regardless of who 

is in the White House, prosecuting national security leakers will always be a legally and politically fraught proposition. 

Thank you, and I look forward to your questions. 

Mr. SENSENBRENNER. Okay. Thank you very much. 

[The prepared statement of Mr. Vladeck follows:] 

34 

Prepared Statement of Stephen I. Vladeck, Professor of Law and Associate 

Dean for Scholarship, American University Washington College of Law 


SIV-2.eps
35 


SIV-3.eps
36 


SIV-4.eps
37 


SIV-5.eps
38 

Mr. SENSENBRENNER. We will now have questions under the 5- 

minute rule. And, first, I will recognize the gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. I appreciate 

that. 


SIV-6.eps
39 

Does anybody believe that the laws that we are talking about, 

particularly the Espionage Act, would not properly come into play 

with the alleged revelation of or participation, if true, in the 

Stuxnet virus or the Flame virus? 

Mr. VLADECK. I will give the law professor answer. I think it depends on how that information was actually disclosed. So—— 

Mr. LUNGREN. Well—well—okay. You are going to the question— 

are you suggesting that it is a question of overclassification? 

Mr. VLADECK. No, sir. I am suggesting that there could be situations where information is disclosed because an official who has the 

authority to authorize such a disclosure provides that authority. 

And I don’t know that we know whether or not that is true in this 

case. 

Mr. LUNGREN. Would it bother you to know that the detail that 

was described in The New York Times, if true, is a level of detail 

not presented to Members of Congress, such as the Chairman of 

the Cybersecurity Subcommittee on Homeland Security? That happens to be me. 

Mr. VLADECK. I wouldn’t have guessed. 

Mr. LUNGREN. Wouldn’t that bother you, that an Administration 

that is supposed to be working with the proper role of the legislative branch to do oversight utilizes classification in such a way that 

Members are not aware of the particulars unless they read The 

New York Times? That is, if what is in The New York Times is 

true. 

Mr. VLADECK. It would bother me. All I would point out is that 

it would hardly be the first time that Members of Congress found 

out about those kinds of programs from the press as opposed to 

from the Administration. I mean, it would bother me no matter 

who was in Congress and who was in the White House. 

Mr. LUNGREN. Because that also goes to the constitutional question of the powers of the legislative branch to do proper oversight 

to ensure that we are not having malefactors in the executive 

branch in the areas of serious concern. 

Colonel, you said this is unprecedented—— 

Colonel ALLARD. Yes. 

Mr. LUNGREN [continuing]. In your experience. 

Colonel ALLARD. It absolutely is. 

Mr. LUNGREN. And I know why I think it is unprecedented, but 

could you tell me why you believe it is unprecedented? In addition 

to the fact that, as you mentioned, the experience of Midway, I do 

recall there was an expression utilized during World War II that 

went, ‘‘Loose lips sink ships.’’ They could certainly sink 

cybersecurity. 

Colonel ALLARD. Absolutely can. For reasons that General Alexander pointed out on this very Hill 2 days ago. We are vulnerable 

to any form of cyber means. We are more dependent on these forms 

of computers, computer systems, everything, than any other country on Earth. So guess what? If a cyber virus comes into us—the 

same way that we did it to Iran, apparently—we are more vulnerable to this than the other guy. Why would you then do it? That 

is what bothers me the most, other than the fact that I read this 

in The New York Times. 

40 

As I read his book, what really bothered me was the consistent 

access he had. Because, having written five books myself, you can’t 

write a book unless you have been there and can actually talk 

about these things. He was actually there or had people in there 

who told him what actually occurred. When that degree of penetration is going on, as I said, that is like the KGB is acting in the operation. 

Mr. LUNGREN. My observation is, either The New York Times is 

lying or they had access to information of a particular detail that 

could only have come from someone who participated in the Situation Room. And as someone who has been involved in prosecutions 

in the past, you do look to motivation to try and figure out where 

your investigation would take you. 

Colonel ALLARD. That is right. 

Mr. LUNGREN. Would it be unreasonable for us to subpoena individuals who would apparently be involved in the discussions that 

were revealed in these articles? 

Colonel ALLARD. As I read not only in Mr. Sanger’s book but also 

Bob Woodward’s book 2 years ago, ‘‘Obama’s Wars,’’ at least the 

first two chapters are classified Top Secret Codeword. As I looked 

at that, I thought, okay, if I were doing the investigation, I would 

say, cui bono, Cicero’s great question, who benefits? Whose position 

is enhanced by these leaks? That is where you begin the investigation. 

Mr. LUNGREN. I know who has not benefited by it; that is, the 

Navy SEALs who were involved in the operations and their families. I know that those professionals who were working with us in 

the area of cybersecurity are not benefited by this. I know that the 

national security interests of the United States are not benefited 

by this. And so we ought to be looking at what is benefited by this. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Professor Sales, in 5 minutes you can’t detail things that you had 

in your statement. You went through the definition of the offense, 

‘‘willfully communicating, delivering, transmitting any information 

related to the national defense to any person not entitled to receive 

it if the official has reason to believe this information could be used 

to injure the United States or advantage any other country.’’ 

And there are a lot of words in there that are subject to interpretation. One is ‘‘national defense.’’ You have talked about that a little bit. Is that limited to military? 

Mr. SALES. It certainly includes military matters, but not—— 

Mr. SCOTT. Includes military. What about—you mentioned trade 

deals. Are trade deals not covered by, quote, ‘‘national defense’’? 

Mr. SALES. I don’t think it clearly is covered in the way that intelligence information would be covered or military information 

would be covered. 

Mr. SCOTT. Foreign intelligence in some of the legislation we 

have considered included trade deals. 

Mr. SALES. I think a trade deal arguably could be in some circumstances, but it is not as clearly relevant as military information 

or intelligence information would be. 

41 

Mr. SCOTT. Are we talking about only classified information 

being covered, or can sensitive information that has not been classified be covered? 

Mr. SALES. Under the current statute, it is possible that unclassified information that relates to the national defense could trigger 

criminal liability. 

Mr. SCOTT. All classified information covered? 

Mr. SALES. Not necessarily. There might be some forms of classified information that are not properly classified. There might be 

some forms of classified information that do not relate to national 

defense. And—— 

Mr. SCOTT. Is ‘‘improperly classified’’ a defense to a criminal action? 

Mr. SALES. As my friend and colleague, Professor Vladeck, has 

pointed out, most courts, in fact I think all courts, have rejected 

the notion that improper classification exonerates one under the 

Espionage Act. 

Mr. SCOTT. Okay. 

Professor Vladeck, we had leaks to the press. I think one of the 

first cases was the Pentagon Papers. Is a reporter liable under this 

if he reports what he heard? 

Mr. VLADECK. You know, Congressman, we talked about this before. I think that the text of the statute, I think, could be used to 

go after a reporter, not necessarily for the act of publishing this information, but even for the act of holding onto it when he is not 

entitled to. 

I think the government has always been very, very reluctant to 

pursue those cases because of the very serious First Amendment 

concerns they raise. But in the Pentagon Papers case you mentioned, Justice White specifically suggested in his concurrence that 

although the courts could not stop The New York Times from publishing the Pentagon Papers, the Nixon administration could potentially prosecute them after the fact. 

Mr. SCOTT. So the state of the law now is what? 

Mr. VLADECK. You know, I think the best I can say is the law 

is unclear. I think there has only been one case in the history of 

the Espionage Act where the government has prosecuted a third 

party—that is, a recipient of the information as opposed to the 

leaker. That case fell apart. That was the APAC case in Virginia 

in 2005. 

I think there would be serious First Amendment concerns in 

such a case, but those concerns have not yet, you know, produced 

an opinion saying that you cannot bring such a prosecution. So that 

is why I referenced that quote about the uncertainty about the 

scope of the statute. 

Mr. SCOTT. Well, if you are talking about the press generally, we 

have some new problems. Who is a journalist and who isn’t? Is a 

blogger a journalist? 

Mr. VLADECK. Well, you know, the Supreme Court, I think for 

that exact reason, has historically resisted giving special content to 

the press clause of the First Amendment because they don’t want 

to draw the distinction between The New York Times and a blog. 

So I think that is only part of the murkiness here. 

42 

Mr. SCOTT. And then the WikiLeaks, is he a blogger or a journalist? 

Mr. VLADECK. Well, I mean, I think if the government were to 

ever go after Julian Assange under the Espionage Act, I am sure 

that he would try to raise a First Amendment claim along the lines 

that he is merely the press, retransmitting this information. 

Mr. SCOTT. Well, let me just—can I ask generally, what is the 

difference between somebody that leaks and a whistleblower? 

Mr. VLADECK. Perspective? I mean, I think—— 

Mr. SCOTT. Is that the ‘‘intent to harm’’ part of the statute? 

Mr. VLADECK. I mean, I guess the problem is, you know, Congressman, there are examples of individuals who have been prosecuted for leaking who saw themselves as whistleblowers. I think 

Thomas Drake is a very good example of that. 

You know, and that is why I think it is a question of perspective. 

I think whistleblowing—if we understand whistleblowing to mean 

calling attention to waste or misconduct on the part of the government, I think sometimes that will include leaking information that 

is not properly in the public domain. 

Mr. SCOTT. Colonel, do you want to comment on that? 

Colonel ALLARD. There are two things. The test being, first of all, 

the subject matter. Is it relevant, is it germane to the national defense? That test of legitimacy is key. The second, what was your 

motivation? Any legal test also involves motivation. Was the motivation here a promiscuous relationship to dump government secrets, or was it intended to do something else? It is a very tough 

line to draw. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from South Carolina, Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. Wainstein, you said leaks have been around for time immemorial. It strikes me, one way to have fewer leaks is to actually 

prosecute and put in prison the people who do the leaking. So I 

want to talk to you for a second. 

I couldn’t find a Federal statutory reporter privilege. Am I missing it? 

Mr. WAINSTEIN. You couldn’t find a reporter privilege? No. You 

are right. 

Mr. GOWDY. It doesn’t exist—— 

Mr. WAINSTEIN. It doesn’t exist. 

Mr. GOWDY [continuing]. In statute, so then we would have to 

turn to the common law. And I am not aware of any privileges that 

are unqualified, and certainly the reporter’s privilege would be limited and would be qualified. So then we move to this area where— 

because it is the First Amendment, heaven knows we can’t have 

any limitations on that. 

So I thought maybe you and I together, with the help from our 

friends who are law professors, could come up with some examples 

on where there are limitations of people’s First Amendment rights. 

I will go first. Obscenity. What is another one, Professor? 

Mr. SALES. Well, in Near v. Minnesota, the Supreme Court—— 

Mr. GOWDY. You don’t have to cite the cases. 

Mr. SALES. Information about ships’ sailing dates and—— 

43 

Mr. GOWDY. How about deceptive advertising? How about students on high school campuses? They don’t have the full panoply 

of First Amendment rights. How about libel? How about government employees? 

So the notion that the First Amendment has no limitations whatsoever is balderdash, legally and otherwise. 

So that then leaves me with this conclusion: We are asking the 

U.S. attorney, I think in the District of Columbia, to investigate 

leaks. And if he follows DOJ policy, he has to ask the Attorney 

General, 4 months shy of an election, for permission to subpoena 

a reporter in a case that may wind up being embarrassing for this 

Administration. 

So why do we not have a special prosecutor in this case? 

Mr. WAINSTEIN. I think, Congressman, you are referring to the 

internal DOJ guidelines—— 

Mr. GOWDY. Yes. 

Mr. WAINSTEIN [continuing]. That require that the Attorney General personally sign off on a request to subpoena a reporter. 

Mr. GOWDY. That is exactly right. DOJ policy. 

Mr. WAINSTEIN. It is DOJ policy. It is in place to protect the free 

press, to make sure that prosecutions don’t chill the exercise of free 

press. 

Mr. GOWDY. Well, it is certainly not the law. That is just DOJ 

policy. 

Mr. WAINSTEIN. It is not the law. If you look at the Espionage 

Act, there is nothing in the Espionage Act. As you pointed out, 

there is no privilege. 

Keep in mind, however, you can make leak investigations and 

leak prosecutions without actually subpoenaing the reporter—— 

Mr. GOWDY. You may can. But you can also win murder cases 

without calling the eyewitnesses. You can win a murder case without calling the DNA expert. 

Why not send a subpoena to the reporter? Put him in front of a 

grand jury. You either answer the question or you are going to be 

held in contempt and go to jail, which is what I thought all reporters aspired to anyway. 

Mr. WAINSTEIN. Well—— 

Mr. GOWDY. I mean, all of us aspire to be Committee Chairmen. 

I thought that that was the crown jewel in a reporter’s resume, is 

to actually go to jail protecting a source. Give them what they 

want. 

Mr. WAINSTEIN. Yeah, there was a reporter who got the crown 

jewel and spent, whatever it was, 70 days in jail or something—— 

Mr. GOWDY. Seventy days. 

Mr. WAINSTEIN [continuing]. In the Plame case. 

Mr. GOWDY. You can sleep for 70 days. 

Mr. WAINSTEIN. But you make a good point, which is that the 

easiest way to make these cases is to just go to the reporter. Either 

get the reporter’s phone records, email records—— 

Mr. GOWDY. I mean, if you were the prosecutor—— 

Mr. WAINSTEIN [continuing]. Or actually subpoena him and put 

him in the grand jury. That would be the—— 

Mr. GOWDY [continuing]. What would you do other than that? 

44 

If you were the prosecutor and your job was to get to the bottom 

of it as quickly as you could, you would send a subpoena to the reporter, right? 

Mr. WAINSTEIN. Right. 

Mr. GOWDY. And put him in front of a grand jury. 

Mr. WAINSTEIN. Right. And keep in mind, I am going to defend 

the existence of that regulation, not necessarily defending the application of it and how stringently it should be applied—— 

Mr. GOWDY. I am not saying that every line AUSA in every district in the country should be able to subpoena a reporter. I am not 

saying that. I am just saying that something as important and 

compelling, if you want to use a constitutional analysis—if you 

want to talk about the tiers of scrutiny, something as compelling 

as national security. And Ron Machen has to ask the Attorney 

General for permission to subpoena a reporter in what may be a 

very embarrassing fact pattern 4 months before a general election. 

You know, we have to have confidence in the outcome, and you 

have to have confidence in the process. So why not do what lots of 

Members of the House and Senate have asked and have a special 

prosecutor? Why not do it? 

I have never heard law professors this silent before. 

Mr. VLADECK. I mean, you know, I think it assumes facts not in 

evidence. Right? It assumes that the Attorney General, faced with 

a request from two U.S. attorneys, two highly regarded U.S. attorneys, specifically chosen for this task—— 

Mr. GOWDY. Well, has the reporter appeared before a grand jury 

yet? 

Mr. VLADECK. If they have, we wouldn’t know, because grand 

jury proceedings are sealed. 

Mr. GOWDY. Oh, well, then we didn’t—— 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you very much, Chairman Sensenbrenner. 

I, first of all, want to compliment you on pulling together a stellar 

panel of witnesses who, from very varied experiences, have made 

this a very important and interesting hearing. 

I wanted to begin with just two observations. One, I would like 

any of you that would like to tell us about anything new to your 

perspective of this subject of national security leaks and the law 

that have come to your attention as a result of the discussions that 

you have heard of your fellow panelists and the Members of the 

Committee. 

Does anyone have something they would like to add to the 

record? 

Colonel? 

Colonel ALLARD. Mr. Conyers, when I talk about the fact that 

you have to be very careful in revising the Espionage Act, I say 

that not only because I was a special agent myself; I have also been 

the subject of four congressional investigations, four Federal investigations, myself, based on this article, which came out in 2008. It 

took this Committee—I am sorry, it took the four Federal agencies 

3 years, $2.3 million to exonerate these people that included myself. 

45 

So guess what? When I talk about the protections of the law, I 

know what I am talking about. I have not only been a special 

agent, I have also been a subject. 

Mr. CONYERS. Yes. 

Colonel ALLARD. So guess what? That is a chilling effect. You 

never forget that. Fortunately, I am here to tell you that this 

should probably come in first because I managed to succeed. And 

believe me when I tell you, when you defy Federal agencies, if you 

are not right, they are coming after you. 

So I would simply say, when you try and enact legislation, be 

very careful—— 

Mr. CONYERS. Uh-huh. 

Colonel ALLARD [continuing]. Because you are going right back to 

Philadelphia. 

Mr. CONYERS. Thank you. 

Colonel ALLARD. That is consensus that I think I talked about in 

my statement. 

Mr. CONYERS. Thank you. 

Mr. Wainstein, what would you offer to this discussion, sir? 

Mr. WAINSTEIN. I guess you are asking if there is anything new 

today. The thing that struck me—and Steve Vladeck and I were 

talking about this at the beginning—this is our third hearing on 

this issue in the last year and a half. We testified in the Senate 

in 2010 about the Espionage Act, we testified here before you all 

in the aftermath of the WikiLeaks disclosures, and then today, all 

about what should we do about the Espionage Act. And I think, if 

anything, that reinforces in my mind that there is a real imperative to take a look at the legislation and bring it into the modern 

age, because it needs reform. 

Mr. CONYERS. Uh-huh. 

Professor Sales? 

Mr. SALES. Thank you, Congressman. 

One quick follow-up to what Mr. Wainstein just said. Congress 

actually did this in 2000. Congress, both houses, passed legislation 

that would have created an entirely new statute along the lines we 

discussed earlier. Do away with the Espionage Act for dealing with 

leakers. The press is a totally separate issue and much more complicated issue. But to answer the question, what do we do with government employees who leak, Congress actually solved that problem a decade ago. Unfortunately, the legislation was vetoed, so we 

are still waiting for more precise instructions on exactly what the 

scope of liability is for officials who leak. 

Mr. CONYERS. Professor Vladeck, should we just rewrite the 

whole subject of security leaks, or should we just improve on the 

1917 version? 

Mr. VLADECK. You know, Congressman, I think I would actually 

go even further. I would say, not only should there be a careful, 

calibrated amendment of the Espionage Act, but that I think that 

Congress should see as part of that effort reforming the classification scheme. Because I think Congress has historically not exercised the power in that area that I think it clearly has to not leave 

this all up to the executive branch’s fiat. 

You know, the Atomic Energy Act of 1954 actually provides detailed classification rules for certain forms of information regarding 

46 

our nuclear energy program, but it is alone. Right? All of the other 

classification is done by executive order. 

And so I think, you know, if the Committee is serious about a 

workable system going forward, I think that system can’t just include the back-end sanctions. It has to include the front-end rationalization of how we classify national security secrets. 

Mr. CONYERS. I would ask any of you that would like to submit 

this for the record, because time won’t permit it today, but I would 

like an evaluation from any of you about the following subjects: 

Watergate and the Plumbers; the Pentagon Papers and Dan 

Ellsberg; and the whole concept of prior restraint. I would appreciate anything that you could get on that. 

Mr. SENSENBRENNER. Without objection, the material will be put 

in the record. We would like to publish the record sometime within 

the next 2 years, however, since this is somewhat of a broad request, but do your best. 

The gentlewoman from Florida, Ms. Adams. 

Mr. CONYERS. Thank you. 

Mrs. ADAMS. Thank you, Mr. Chairman. 

Mr. Wainstein, does leaking military field reports or diplomatic 

cables endanger innocent people and harm our national security? 

Mr. WAINSTEIN. Certainly can. And I think in the WikiLeaks 

case we saw that there was danger presented to people, in particular those folks who were over in the war zones who helped us 

out and who then get outed by those documents that were made 

public. Who knows what has happened to some of them, but I am 

in fear for their lives. 

Mrs. ADAMS. And, Colonel, if you could, how would you address 

to our allies—you know, I am sure they are concerned with the 

problems of our intelligence services, loss of confidence in our keeping the ability to keep secrets and such. How would you repair that 

damage and how would you address it if you could? 

Colonel ALLARD. I am not sure. 

Ma’am, I was a young intelligence officer in Germany during the 

Church Committee hearings back in the 1970’s. I had sources look 

at me and say, you know what, I am not going to do that for you 

because I don’t want to see my name on the front page of The New 

York Times or Washington Post. I now know how they felt. 

And let me tell you something. When you have that reluctance 

of sources to believe in the confidence of the United States, that is 

a huge blow. It takes years to overcome this. And I don’t think it 

will be overcome unless and until this Congress passes legislation 

which makes a sensible accommodation. 

But I absolutely agree with the Professor Vladeck 100 percent. 

You have to address both the input as well as the output. We are 

overclassified. And so, if you try and protect everything, you protect 

nothing. 

And, by the way, the American people are tired of paying the bill 

for these things. It costs money to classify; it takes money to protect it. We are not doing either thing very well. 

Mrs. ADAMS. Well, I have to tell you that hearing your statements, ‘‘act of war,’’ ‘‘KGB,’’ unprecedented, consistent access to 

documents, information that should be classified—you would agree 

that you think this, if it was true, should have been classified? 

47 

Colonel ALLARD. Ma’am, there is no question about the fact that 

what is in Sanger’s book, as well as on the front page of The New 

York Times, is a valid exercise in classification. If that is not classified, then nothing is. 

Mrs. ADAMS. So—— 

Colonel ALLARD. And, as I said, this affects American security of 

every single one of us here, every single one. If all of a sudden the 

utilities stop operating, you have Mr. Sanger to thank for it. 

Mrs. ADAMS. So then you would agree that what you have read, 

if in fact it is true, should have been classified; therefore, there 

should be a thorough and complete investigation. 

Colonel ALLARD. There absolutely should be! As I said in my 

statement, I was here when the Congress investigated. What really 

bothers me, I think, about this is, it has become an agency for 

American secrets to wind up becoming reporters’ profits. That is 

what has happened here. 

Mrs. ADAMS. And I agree that that should not be happening at 

the—I guess at the benefit of the reporters or whomever they are 

benefiting, but at the detriment of the American people. And, as 

you said, we are vulnerable, too, and this puts our American people 

at risk. 

And with that, I am going to yield to my colleague, the astute— 

let’s see—attorney, prosecutor, Trey Gowdy. 

Mr. GOWDY. Well, I was hoping to keep that a secret, but I thank 

the gentlelady from Florida for outing me as a lawyer. 

Mr. Wainstein, I want you to assume that you and another highly decorated former prosecutor, the former attorney general from 

the great State of California, Mr. Lungren, were appointed special 

counsel. You would subpoena the reporter and you would subpoena 

everyone in the Situation Room, right, before a grand jury? 

Mr. WAINSTEIN. Well, Congressman, I have to go back to what 

Steve Vladeck said. It sort of depends on the circumstances, in 

terms of, you know, who would be in the zone of interest. It depends on where the source came from, where the leak came from. 

In terms of the reporter, I think that special counsel, at least I 

believe—don’t quote me on this—but I believe they may not be encumbered by the same regulations. 

Mr. GOWDY. Right. 

Mr. WAINSTEIN. So they might be able to go ahead and subpoena 

the reporter. 

However, they are going to be sensitive to the First Amendment 

concerns, as well. And I wouldn’t be surprised if that special counsel does try to exhaust other avenues of investigation before immediately subpoenaing—— 

Mr. GOWDY. Well, and that leads to my final question, which is 

this: Why would the reporter be entitled to any more protection 

than those in the Situation Room or someone who worked on the 

White House staff who may have overheard it? Why are we affording—because it is not statutory, and the common law is weak as 

water. Why are you giving more protection to a reporter than you 

are anyone in the Situation Room if they were subpoenaed? 

Mr. WAINSTEIN. It is purely—and this has been on the part of 

both Administrations over time—it is a concern with not chilling 

the free press. It is a recognition that reporters serve a very imporVerDate Aug 31 2005 17:36 Oct 24, 2012 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\071112\74977.000 HJUD PsN: 74977
48 

tant function in our society, and if we start subpoenaing them in 

with regularity, they are going to be less energetic in trying to root 

out information from the government. 

And reporters, as you know, reporters serve a very important 

function of disclosing wrongdoing within the government, not necessarily secrets, but wrongdoing. So it is a balancing act, and that 

is the reason why those regulations are there. That is the reason 

for the reluctance to just willy-nilly subpoena reporters in on a regular basis. 

That being said, I firmly support, when the time is right and the 

circumstances justify it, to bring the reporter in, especially in a 

case where there is serious damage to the national security. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentlewoman from California, Ms. Chu. 

Ms. CHU. Thank you, Mr. Chair. 

I would like to ask a question to Professor Sales and see what 

Professor Vladeck might think about this afterwards. And it is a 

follow-up on the issue of the press. 

It has been suggested by some critics that one way to ebb the 

flow of classified information is to discourage the press from publishing such information by filing criminal charges or seeking injunctions from courts. However, both of these approaches raise constitutional concerns as it pertains to restricting free speech. 

How do we balance the need to keep certain information confidential with the importance of upholding free speech and freedom 

of the press? 

Mr. SALES. Thank you, Congresswoman. 

If I had an answer to that question, I would probably be a dean 

instead of a professor. That is the million-dollar question. 

There are compelling values on both sides of the ledger. On the 

one hand, the First Amendment is a guarantee not only of individual rights to speak and receive information but also a profound 

civic value in favor of open government, debate, and democracy. 

And you can’t have that without transparency and openness. On 

the other hand, highly classified and properly classified national security information needs to be kept secret. If it leaks, we can’t 

wiretap Osama bin Laden. If it leaks, sources get caught in the 

Kremlin and killed. How to balance those two different sets of considerations, equally vital values pulling in different directions, it is 

impossible, I think, to say in the abstract. I think that question can 

only be resolved in the context of a specific case. 

So in the New York Times case, the famous Pentagon Papers 

case, what kind of information is at stake there? Well, as it turns 

out, the information, though classified, wasn’t really all that embarrassing anyway. Well, it was embarrassing, but it wasn’t operational details, ‘‘Here is the name of our source in Hanoi.’’ Right? 

It was a history of the U.S. involvement in Southeast Asia. 

When balanced against the compelling interest in free speech, it 

is easy to see why information of that minimal sensitivity—not no 

sensitivity, but minimal sensitivity—why the balance tilts in favor 

of the press. But on the other hand, information about, you know, 

the name of the Pakistani doctor who assisted us in tracking down 

Osama bin Laden and who now is in jail for 3 decades, that has 

49 

a much more profound harm to the national security, and so the 

First Amendment equities in that case might look very different. 

Ms. CHU. Professor Vladeck? 

Mr. VLADECK. I would just add, I absolutely think this ties in 

nicely with Congressman Gowdy’s colloquy with Mr. Wainstein. Because I think Mr. Wainstein suggested that the Attorney General 

guideline is there to protect the press. I actually think it is also 

there to protect the government. Because I think the more the government goes after the press, the more the government is seen as 

not exercising care and diligence in pursuing the press in cases like 

this, the more the courts, I think, will be inclined to step in and 

protect the press. Right? So I think the government builds its credibility for cases, along the lines that Professor Sales describes, 

where it might actually really have a strong case by not running 

to the courthouse for a subpoena every single time there looks like 

there is a national security leak. 

I think that the reality is, this balance is impossible to strike in 

the abstract. The closest the Supreme Court has come is the accommodation it made in the Pentagon Papers case, which is prior restraints are the highest bar and are the most disfavored, and afterthe-fact prosecutions are a separate issue that we will worry about 

when we get there. 

And I think it says a lot about the national security leaks we 

have weathered over time that there has never been a prosecution 

of a member of the press for violating the Espionage Act. You 

know, that we have never had one I think is actually as strong a 

testament to striking that balance carefully as anything I could 

say. 

Ms. CHU. Uh-huh. 

Professor Vladeck, I also wanted to ask about the question of 

whether we should distinguish between motivations for leaks. 

There are lots of different reasons why a leak could occur. Some 

are motivated by government whistleblowing and seeking to raise 

awareness about an issue or policy. Other leaks indeed might be 

motivated by maliciousness. Still others might be just doing a pick 

of the flattery by a recording reporter. 

How much consideration should be given to understanding the 

motivation behind a leak? 

Mr. VLADECK. It is a great question. I think it really depends on 

what we see as the harm. If the harm is the disclosure of the protected information at large, then I think motivation is irrelevant. 

And I think that is part of the problem with the Espionage Act the 

way it is currently crafted. That is the premise from which it proceeds, right, that once the information is out there in a way that 

could harm national security, it doesn’t matter why it is out there. 

I think a more carefully tailored statute could very well take into 

account the kinds of things you suggest. If the goal was to reveal 

waste and fraud or if the goal was to call the attention of Americans to an illegal government program, you know, perhaps that 

would be a way to narrow the focus of the statute. The problem is, 

the way the law is right now, there is no room for that. And so we 

can have that conversation here and we can have it on the editorial 

pages but not in the courts. 

Mr. SENSENBRENNER. The gentlewoman’s time has expired. 

50 

The gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And we appreciate the witnesses’ being here. We certainly do. 

But this Department of Justice policy to get approval from the 

AG himself, I think is where it is coming back to, Professor, you 

had said the AG policy protects not only the reporter but also the 

government. And I keep coming back to, so who is protecting the 

people? I mean, the people are the ones that are supposed to be 

protected. 

How about, who is protecting the soldiers? Okay, we have a DOJ 

policy that protects the AG. It also protects the reporter. Who is 

protecting Navy SEALs? Who is protecting the one that gave us the 

information that got bin Laden? I mean, who is protecting those 

who are helping us? And I am not getting the impression that we 

have anybody doing that right now. 

I know that at this very table we had the Attorney General of 

the United States testify before the full Committee. In his words, 

there are political dimensions to justice. That goes against everything every law professor I have ever heard told me and taught me. 

It goes against everything every Democratic Party member teacher 

I had taught me. They knew this country, they knew what founded 

this country, and they, I think, instilled it in me. 

And somebody needs to be watching out for the people and for 

the man that is going to do 3 decades in prison unless we get firm 

about stepping up and helping him. 

Now, I would just like to know, if we don’t have a special prosecutor, who is going to stand up and protect those who are out 

there protecting us? 

And as you are thinking about that, let me just tell you, a father 

of one of the SEAL Team 6 members told me that after—and we 

don’t have to wonder too far how SEAL Team 6 got disclosed, when 

we saw the Vice President on TV saying something like, ‘‘Well, how 

about that SEAL Team 6? Aren’t they great? Yeah, let’s hear it for 

them.’’ And a father of one of the SEAL team members told me 

that his daughter-in-law, their family, got pretty instant military 

protection because they knew that the Vice President had just 

outed these guys. 

And then when the President picks that up and starts talking 

about SEAL Team 6, and then when you have the Taliban target 

a helicopter with nearly two dozen of SEAL Team 6 members, who 

was out there protecting them when the Vice President and the 

President outed SEAL Team 6? 

We know the President can declassify, so there can be no prosecution there, but how about in these other cases? Is there anybody 

else that you could propose that would actually be looking, not out 

for the government, not out for the reporter, but for the people, for 

those who are trying to protect us, other than a special prosecutor? 

I would really like to hear who it is. 

Mr. SALES. Well, Congressman, I think those are excellent 

points, and that explains why DOJ created this regulation in the 

first place. 

Let’s go back to first principles. DOJ recognized that sometimes 

there could be an appearance of impropriety or a conflict of interest 

51 

where the Attorney General and others in the Presidential line of 

command are responsible for investigating—— 

Mr. GOHMERT. Well, let me—because you left this—that is why 

we have ‘‘this regulation.’’ Are you talking about the one that requires the Attorney General, who believes there are political dimensions to justice, that is why we have to get his permission? Is 

that what you are saying? Is that the policy you are talking about? 

Mr. SALES. Well, Congressman, what I am saying is that, because of the potential for conflict of interest, there is a mechanism 

now for appointing special counsels outside of the normal Presidential chain of command to give them a measure of independence 

so that they don’t have to get approval from superiors in the Justice Department or elsewhere before taking certain investigative 

steps, such as issuing a subpoena to a reporter. 

I think the example from 2003 is a very good example of how 

this regulation can work in practice. After it was alleged that senior Administration officials—— 

Mr. GOHMERT. All right, you are going beyond my question. My 

time—— 

Mr. SALES. Okay. 

Mr. GOHMERT [continuing]. Is running out. 

Let me just also make this point, that this same Attorney General has appointed, or asked for an investigation by an inspector 

general at DOJ who got a tape of a conversation with a Federal 

agent, and rather than acting like a true inspector general for a potential prosecution down the road, she turns it over to the Federal 

agent, ‘‘You better listen to this before I ask you questions.’’ We got 

a real problem in the Department of Justice if that is the kind of 

special investigations we get. 

And my time is up. I yield back. 

Mr. SENSENBRENNER. Okay. The Chair will say that after he recognizes the gentleman from Georgia, Mr. Johnson, he will recognize himself for the last series of questions. 

The gentleman from Georgia, Mr. Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

And I am just wondering, where was the moral indignation and 

outrage and the like that has been displayed before us this morning, where was that when Valerie Plame, a CIA agent, a covert 

CIA agent, was outed by the previous Administration? Where was 

the indignant outrage? 

Mr. GOHMERT. Will the gentleman yield? 

Mr. JOHNSON. Yes. 

Mr. GOHMERT. I was outraged Richard Armitage was not prosecuted. He should have been, and I still hope he will be, for outing 

her. 

Mr. JOHNSON. Reclaiming my time, I am glad to know that there 

was at least one of my colleagues on the other side of the aisle that 

voiced indignation, but I think you may have been by yourself on 

that. And it seems like there was a protective covering that was 

hoisted upon the actors in that drama by my colleagues on the 

other side, but now, you know, we want to be more indignant than 

I think is required. 

52 

Sometimes we have good leaks and sometimes bad leaks. Is that 

correct? I mean, Abu Ghraib was a good leak, and there are some 

leaks that are bad. Would you gentlemen generally agree? 

I see heads shaking, going up and down, so that I think that 

means ‘‘yes’’ in America. Is that correct? 

Colonel ALLARD. No. 

Mr. JOHNSON. Huh? 

Colonel ALLARD. No, sir. 

Mr. JOHNSON. That is not correct? All right. 

Colonel ALLARD. Sir, as a counterintelligence officer, do not tell 

me there is such a thing as a good leak. 

Mr. JOHNSON. Well, I guess it depends on where you are sitting, 

though. 

Colonel ALLARD. I am as opposed to—in a war, I am as opposed 

to the free flow of information as to the free flow of sewage, because it can cost lives. 

Mr. JOHNSON. Well—— 

Colonel ALLARD. They have done so, I think, in this instance—— 

Mr. JOHNSON.—I understand, but, I mean, you have some good 

leaks and bad leaks. I don’t think you can disagree with that. We 

really needed to learn with Abu Ghraib so that we could correct 

what was going on over there. 

And, you know, the problem is that, you know, sometimes our 

laws can go too far so as to shield free speech. And I think that 

is a conflict that we probably need to address here. 

Those memos, those torture memos written by Deputy Assistant 

Attorney General John Yoo and Assistant Attorney General Jay 

Bybee advised the U.S. Government that acts widely regarded as 

torture might be legally permissible under an expansive interpretation of Presidential authority. At least one of these memos was 

leaked to the public, while others were obtained through litigation. 

The memos were widely criticized as legally flawed and morally 

indefensible. President Obama repudiated the opinions in early 

2009. The source of the leak for those memos was never found. 

And we have leaks that have occurred throughout every Administration that has served in America. Is there any particular reason 

why we should be so dramatically concerned about the recent spate 

of leaks that have occurred? 

Mr. WAINSTEIN. If I could, Congressman, you have put your finger on an interesting point, you know, whether there are good 

leaks or bad leaks. And some people will say, look, we have to 

allow some leaks because that is the only way information about 

wrongdoing within the government is going to get surfaced. 

But that is not the case. I mean, now Congress, in its wisdom, 

has passed a series of whistleblower-protection laws, which say 

that if you are a whistleblower, in other words you are a person 

within the government, you see something that looks like waste, 

fraud, abuse, or criminal conduct, you can take that information 

up, and in the intelligence community you can take it up to the Intelligence Committees in Congress. 

The point being that there is an avenue for surfacing that information other than going to the press now. So the argument that 

you need to have press leaks—— 

Mr. JOHNSON. I got you. 

53 

Mr. WAINSTEIN [continuing]. In order to allow that is really not 

the case. 

Mr. JOHNSON. I got you. Do the whistleblower laws take precedence over the espionage statutes? 

Mr. WAINSTEIN. Well, they do. And, in fact, Professor Vladeck 

has spoken to this in today’s testimony. There is some tension 

there. But the notion is that if you follow, as a government employee, follow the whistleblower-protection procedure and disclose 

things to the right people within the—— 

Mr. JOHNSON. Then you will not be prosecuted for—— 

Mr. WAINSTEIN. That is the idea. Now, there is a concern. Those 

things have to be sufficiently user-friendly to—— 

Mr. JOHNSON. Is that in the law? 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The Chair recognizes himself for 5 minutes for the final questions. 

First of all, let me point out that, in the case of the Valerie 

Plame leak, the leak was by an Administration supporter. And 

there was a special counsel appointed, Patrick Fitzgerald, who was 

the U.S. attorney for the Northern District of Illinois. And there 

were some very controversial prosecutions involved, which resulted 

in some convictions. I think we all know who was convicted. 

Now, the other thing is that I, you know, agree with Colonel Allard, you know, that there is no such thing as a good leak. A good 

leak is one that, you know, you agree with who gets damaged in 

the national security realm, and a bad leak is that you disagree 

with it. Nobody should get damaged in the national security realm 

by a leak. 

And the thing is, if somebody is engaged in misconduct, the whistleblower-protection acts do provide for protection of a whistleblower who sends the information up the chain of command to people who have been cleared, including Members of the Senate and 

House Permanent Select Committee on Intelligence. 

Now, having said all of that, you know, this is a very difficult 

area to legislate in. And I don’t think that we have the time left 

in this Congress to be able to deal with the various issues. 

First, I agree with Professor Vladeck that the Espionage Act of 

1917 is outdated. You know, the type of espionage that this country 

faces now is not the type of espionage that German spies did in the 

march to World War I. Though I would point out that there were 

a whole package of laws that Woodrow Wilson got passed, including the Sedition Act, which resulted in one of my predecessors as 

the representative of the Fifth District of Wisconsin getting excluded from Congress twice, getting reelected by a constituency 

that Mr. Wilson decided—or the constituency that decided that Mr. 

Wilson chose the wrong side to fight for in the First World War, 

and he spent some time as a sitting Member of Congress sitting in 

jail for sedition. So, you know, it seems to me that, you know, the 

history of those kinds of acts mean that we have to update them. 

I am not for having an Official Secrets Act like occurs in the 

United Kingdom, but I am for revising standards for classification. 

And there ought to be some type of almost strict liability on someone who deliberately leaks something that he or she knows to be 

classified to somebody who does not have a security classification. 

54 

And, finally—and this is the question that I would like to ask, 

and we will start with you, Mr. Wainstein. Are there any circumstances where putting a reporter in jail for publishing a leak 

are permissible under the First Amendment? 

Mr. WAINSTEIN. I believe so. 

Mr. SENSENBRENNER. And what are—— 

Mr. WAINSTEIN. I believe, actually, you can look at the iconic 

case, speaking of Midway, where the Chicago Tribune actually published the fact that we had broken the Japanese code in 1942, 

which could have been devastating to our war effort and could have 

resulted in the loss of thousands, if not tens of thousands, more 

American lives. Under certain circumstances, you could see that if 

someone had done that with impunity and knowledge of the consequences and gone ahead and published it, that is something that 

I think would be worthy of prosecution and punishment. 

Mr. SENSENBRENNER. You know, how about prosecution and punishment for those that disclosed it was SEAL Team 6 that actually 

went in and took out bin Laden? Is that the same thing? 

Mr. WAINSTEIN. Sir, it depends on the facts and the consequences. I really couldn’t, sort of, opine on it because I—in retrospect, I can see what it would have done to World War II. It is 

hard for me to know whether the fact that SEAL Team 6 that operates in secret, whether it is going to suffer the same damage or not, 

and also the intent behind the leak. That is a—you know, that is 

a serious leak, though, something that should be—— 

Mr. SENSENBRENNER. Okay. 

Mr. WAINSTEIN [continuing]. Seriously looked at by a prosecutor. 

Mr. SENSENBRENNER. Well, you know, here we are talking 70 

years after the fact of the leak on the Japanese codes on Midway. 

Perhaps 70 years from now, we will be talking in this Committee 

about the leaks on SEAL Team 6, which I think emphasizes the 

fact that we do need to update the laws. 

Professor Sales—— 

Mr. WAINSTEIN. If I could, Mr. Chairman, just—— 

Mr. SENSENBRENNER. Okay. 

Mr. WAINSTEIN [continuing]. Keep in mind, the distinction between punishing and prosecuting the newspaper reporter, that is 

a very different issue from prosecuting and punishing the leaker. 

And, you know, to your question as to whether you should put the 

reporter in jail, that is a bigger step. 

Mr. SENSENBRENNER. Okay. 

Professor Sales, and then—my time is already up, but—well, answer the question. 

Mr. SALES. Gladly. 

I think the answer to the question is ‘‘yes, comma, it depends.’’ 

There are circumstances in which it certainly would be constitutionally permissible to hold reporters to the same criminal law 

standards that every other citizen in the United States is expected 

to follow. 

In fact, the Supreme Court in the Pentagon Papers case recognized that there may be circumstances in which it would be consistent with the First Amendment to apply the terms of the Espionage Act to reporters that publish classified information. 

Mr. SENSENBRENNER. Thank you very much. 

55 

And I would like to thank all of the witnesses for appearing, you 

know, in I think what is a very interesting hearing that has a lot 

of interrelated and difficult policy questions involved. 

I, frankly, think that in the next Congress this Committee should 

take a whack at trying to put something together that updates the 

law and attempting to balance competing interests and how they 

interrelate with each other, recognizing the fact that at least at the 

beginning of this process everybody will come in and testify against 

something that is in the law. But I think it is unacceptable to keep 

relying on the 1917 act to deal with the issue of leaks, as well as 

the issue of espionage, because espionage now is a lot different 

than it was in the First World War. 

That having been said, thank you all for coming. 

And, without objection, the hearing is adjourned. 

[Whereupon, at 11:36 a.m., the Subcommittee was adjourned.] 

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