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S. HRG. 111–834 

THE ESPIONAGE STATUTES: A LOOK BACK AND 

A LOOK FORWARD 

HEARING 

BEFORE THE

SUBCOMMITTEE ON TERRORISM 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

MAY 12, 2010 

Serial No. J–111–91 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

ARLEN SPECTER, Pennsylvania 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

SUBCOMMITTEE ON TERRORISM AND HOMELAND SECURITY

BENJAMIN L. CARDIN, Maryland, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

AL FRANKEN, Minnesota 

EDWARD E. KAUFMAN, Delaware 

JON KYL, Arizona 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BILL VAN HORNE, Democratic Chief Counsel 

STEPHEN HIGGINS, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 1 

prepared statement .......................................................................................... 35 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 2 

prepared statement .......................................................................................... 39 

WITNESSES 

Smith, Jeffrey H., Partner, Arnold and Porter, Washington, DC ........................ 6 

Vladeck, Stephen, I., Professor of Law, American University Washington College of Law, Washington, DC .............................................................................. 3 

Wainstein, Kenneth L., Partner, O’Melveny and Myers, Washington, DC ........ 8 

QUESTIONS AND ANSWERS 

Responses of Jeffrey H. Smith to questions submitted by Senator Cardin ........ 24 

Responses of Stephen I. Vladeck to questions submitted by Senator Cardin .... 30 

Responses of Kenneth L. Wainstein to questions submitted by Senator 

Cardin ................................................................................................................... 33 

SUBMISSIONS FOR THE RECORD 

Lowell, Abbe David, Attorney at Law, McDermott Will & Emery, Washington, 

DC .......................................................................................................................... 43

Smith, Jeffrey H., Partner, Arnold and Porter, Washington, DC ........................ 48 

Vladeck, Stephen, I., Professor of Law, American University Washington College of Law, Washington, DC .............................................................................. 61 

Wainstein, Kenneth L., Partner, O’Melveny and Myers, Washington, DC ........ 75 

(1) 

THE ESPIONAGE STATUTES: A LOOK BACK 

AND A LOOK FORWARD 

WEDNESDAY, MAY 12, 2010 

U.S. SENATE, 

SUBCOMMITTEE ON TERRORISM AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 11:03 a.m., in 

room SD–226, Dirksen Senate Office Building, Hon. Benjamin L. 

Cardin, Chairman of the Subcommittee, presiding. 

Present: Senators Cardin and Kyl. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. 

SENATOR FROM THE STATE OF MARYLAND 

Chairman CARDIN. The Subcommittee will come to order. We 

apologize for the late start. As you know, there were votes on the 

floor of the Senate. 

I am going to ask unanimous consent that my entire opening 

statement be put in the record. 

[The prepared statement of Chairman Cardin appears as a submission for the record.] 

Chairman CARDIN. I also ask unanimous consent that a letter we 

received from Abbe Lowell, an attorney and a person I have known 

for a long time in regards to the challenges he faced in representing defendants under espionage law, also be made part of our 

record. 

[The letter appears as a submission for the record.] 

Chairman CARDIN. Let me just start by saying that the purpose 

of this hearing is to establish a record on the espionage laws of our 

country. They were developed really in 1917 after World War I to 

deal with traditional spies who desired to help our enemies. And 

as Senator Kyl and I were talking about, if you look at the statute, 

you will see ‘‘code books,’’ which I am sure people are wondering 

what that is today. 

It was that concern that motivated the Congress in that time to 

pass laws to protect our country against our enemies, and that 

statute has now been used to deal with Government officials who 

leak information and private citizens who get information and 

share it, but have no desire at all—in fact, they think they are 

helping our country, not hurting our country. The question is 

whether these laws are adequate the way that they were drafted, 

and today we have three witnesses who are really experts in this 

area. 

2 

The purpose is not to take immediate action on a specific bill. It 

is certainly not an effort to try to deal with the ‘‘shield law,’’ which 

has already been acted upon by our Committee. The purpose really 

is for us to get a better understanding as to how the espionage law 

works today with today’s technology that was not in existence during World War I, and whether we need to look at a different type 

of a statute to protect our Nation against both spies and those who 

have sensitive information and unlawfully disclose that information. And I really do thank our three witnesses that are here to 

share their expertise with the Committee. 

With that, I would yield to Senator Kyl. 

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Thank you very much, and, Mr. Chairman, thank 

you for holding this hearing on a subject which is very important 

and undoubtedly needs to be addressed now. We were talking on 

the way over about the need probably to replace terms like ‘‘code 

books’’ with ‘‘electronic information’’ and things of that sort; ‘‘national defense,’’ maybe changing that to ‘‘national security,’’ and 

things of that sort. And we really appreciate the recommendations 

in the testimony. Mr. Smith, I read your testimony last night, and 

you had a lot of good ideas in there about that. 

I also, though, want to focus on something else as well. Let me 

ask unanimous consent to put my statement in the record. 

Chairman CARDIN. Without objection. 

[The prepared statement of Senator Kyl appears as a submission 

for the record.] 

Senator KYL. I will just raise the question. I will be interested 

in the witnesses’ basically addressing this issue. We have significant whistleblower statutes on the books now to enable people who 

have legitimate reasons for disclosing classified information to be 

able to do so in a protected environment. I do not have a lot of sympathy for people who decide on their own to bypass those statutes, 

and knowing that the release of information or leak of information 

to a newspaper, let us say, that is published has the identical effect 

as releasing that information to a foreign spy would have for the 

purposes of the enemy, believing that it is OK and then not being 

able to prosecute it. I would like to get your reaction to that. 

And with regard to the question of motive, as I recall, the Israeli 

spy—I have forgotten his first name; Pollard was his last name— 

had a very good motive. He did not want to hurt the United States 

at all, but he did want to help his country of Israel. He is serving 

life in prison because motive in that case did not matter. It was 

the effect of the leak of the secrets to another government that was 

the problem. 

So everybody recognizes that leaks are a problem. Nobody seems 

to have a good idea about how to stop it. And I did appreciate, 

again, Mr. Smith, some of the ideas that you had in your testimony. But I would like to delve into that a little bit more during 

the hearing. 

So, Mr. Chairman, thank you for, again, raising this very, very 

important subject, and I think it will be beneficial for our colleagues. 

3 

Chairman CARDIN. Well, thank you, Senator Kyl. I just want to 

underscore the points that you raised because I think this is critical to trying to understand the espionage laws. I was reading the 

material for today’s hearing and was fascinated by the court in the 

Rosen case adding a mental state requirement, which I would be 

interested to see as we develop this hearing as to how the statute 

has been basically interpreted by the courts over the last 100 

years, changing, I think, the original intent of the statute to try to 

meet current circumstances. But it may not serve all the circumstances that we have to deal with, and you mentioned the 

whistleblower issues, and that is a good point. Congress passed the 

whistleblower statute in order to provide a mechanism where a 

person working for a sensitive agency could come forward in a protected way. Well, if that employee does not use that process, then 

are these statutes adequate to deal with it? I think the points that 

you raise are ones I hope that we will address through the three 

witnesses. 

We have Stephen Vladeck, who is a Professor of Law at American University School of Law. Professor Vladeck is a nationally 

recognized expert on the role of the Federal courts in the war on 

terrorism, and has authored numerous law review articles on espionage statutes and terrorism-related issues. He has also been part 

of the team of attorneys who have been litigating important national security issues relating to the use of military tribunals at 

Guantanamo Bay. 

Jeffrey Smith is currently a partner in the D.C. office of Arnold 

and Porter. He heads the firm’s national and homeland security 

practice. Mr. Smith previously served as General Counsel of the 

Central Intelligence Agency and currently serves on the CIA Director Leon Panetta’s External Advisory Board. Mr. Smith also serves 

as General Counsel to the Senate Armed Services Committee, and 

prior to working in the Senate, he was Assistant Legal Adviser in 

the State Department and as an Army Judge Advocate General officer. As the head of Arnold and Porter’s National homeland security practice, Mr. Smith’s clients have included individuals and 

media organizations involved in leak cases. 

Finally, Kenneth Wainstein, who is also currently an attorney in 

private practice and a partner in the D.C. office of O’Melveny and 

Myers. Mr. Wainstein previously served as the first Assistant Attorney General for National Security during the Bush administration where he was responsible for the supervision of espionage 

cases, and also formerly served as a United States Attorney for the 

District of Columbia. Mr. Wainstein also previously served as General Counsel and Chief of Staff to the FBI Director Robert Mueller. 

So we will start with Mr. Vladeck, and then we will work our 

way through the witnesses. Thank you. 

STATEMENT OF STEPHEN I. VLADECK, PROFESSOR OF LAW, 

AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW, 

WASHINGTON, DC 

Mr. VLADECK. Thank you, Mr. Chairman and Senator Kyl. It is 

an honor to testify before the Committee today on such an important but neglected topic. 

4 

Mr. Chairman, you mentioned the importance of the Espionage 

Act and its significance in our fight to avoid espionage and the implications for our National security. And I think we can all agree 

that this is an important goal that really cuts across aisles, cuts 

across ideologies, et cetera. 

But as significant as the Espionage Act is, and has been, I think 

it is fair to say it is also marked by profound and frustrating ambiguities and internal inconsistencies. Attempting to distill clear 

principles from the state of the Federal espionage laws in 1973, two 

Columbia Law School professors—Hal Edgar and Benno Schmidt- 

-lamented that the longer they looked, the less they saw. Instead, 

as they observed, ‘‘we have lived since World War I in a state of 

benign indeterminacy about the rules of law governing defense secrets.’’ If anything, such benign indeterminacy has only become 

more pronounced in the four decades since—and, according to 

some, increasingly less benign. 

My written testimony elaborates upon the statutory scheme in a 

bit more detail. But for present purposes, suffice it to say that, in 

my view, there are four significant problems with the Espionage 

Act in its current form. 

The first and most systematic defect to which, Mr. Chairman and 

Senator Kyl, you both already alluded concerns its ambiguous 

scope, by which I mean whether it applies to anything beyond classic spying. Enacted to punish ‘‘espionage,’’ which Black’s Law Dictionary defines as ‘‘The practice of using spies to collect information 

about what another government or company is doing or plans to 

do,’’ the plain text of the Act fails to require a specific intent either 

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

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

know or have ‘‘reason to believe’’ that the wrongfully obtained or 

disclosed ‘‘national defense information’’ is to be used to the injury 

of the United States, or to the advantage of any foreign nation. 

As a result, the Act could be applied as currently written to prosecute Government employees or private citizens in cases bearing 

little resemblance to classic espionage. Such cases could include situations in which a Government employee seeks to reveal the details of an unlawful secret program, or to bring to the attention of 

the relevant Inspector General or oversight officer the existence of 

information that was wrongfully classified; and cases in which a 

private citizen comes into the possession of classified information 

with no desire to harm our National security. In each of these circumstances, an informed citizen would certainly have ‘‘reason to 

believe’’ that the relevant information, if publicly disclosed, could 

cause injury to the national security of the United States. That 

knowledge, though, need not—and often will not—bear any relationship to the defendant’s actual motive. And I think we saw this 

in the Rosen case. 

Indeed, in his ruling in the Rosen case, Judge Ellis specifically 

said that the language of the statute leaves open the possibility 

that defendants could be convicted for these acts, despite some salutary motive, which Senator Kyl already mentioned. 

Now, I said there were four significant problems with the Espionage Act. Let me briefly describe what I say as the other three key 

defects, obviously, upon which I would be happy to elaborate. 

5 

Related to the ambiguous scope of the Espionage Act is the question of how, if at all, it applies to whistleblowers. For example, the 

Federal Whistleblower Protection Act protects the public disclosure 

of a violation of any law, rule, or regulation, only ‘‘if such disclosure 

is not specifically prohibited by law, and if such information is not 

specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.’’ Similar 

language appears in most of the other Federal whistleblower protection statutes. 

To be sure, the Federal whistleblower statute, the intelligence 

community whistleblower statute, and the military whistleblower 

statute all authorize cleared Government personnel in national security cases to receive information from the putative whistleblower. 

And yet there is no specific reference in any of these statutes to 

the Espionage Act or to the very real possibility that those who receive the disclosed information, even if they are ‘‘entitled to receive 

it’’ within the meaning of the Espionage Act—and that itself is 

hardly clear—might still fall within the ambit of Section 793(d), 

which prohibits the willful retention of national defense information. Superficially, one easy fix to the whistleblower statutes might 

be amendments that made clear that the individuals to whom disclosures are supposed to made under these statutes are ‘‘entitled 

to receive’’ such information under the Espionage Act. But Congress might also consider a more general proviso exempting protected disclosures from the Espionage Act altogether. 

Another important and related ambiguity with the Espionage Act 

is whether and to what extent it might apply to the press. As with 

the whistleblower example I just described, a reporter to whom a 

Government employee leaks classified information could theoretically be prosecuted merely for retaining that information and could 

almost certainly be prosecuted for disclosing that information, including by publishing it. And yet it seems clear from the legislative 

history surrounding the original Espionage Act that Section 793(e) 

was never meant to apply to the press; indeed, three other provisions of the Espionage Act specifically prohibit publication of national defense information, and another, broader limitation on the 

retention of national security information by the press was specifically scrapped by Congress in 1917, suggesting that the Act is express in those few places where it specifically targets news gathering. 

Finally, the Espionage Act is also silent as to potential defenses 

to prosecution. Most significantly, every court to consider the issue 

has rejected the availability of an ‘‘improper classification’’ defense—a claim by the defendant that the information he unlawfully 

disclosed was, in fact, improperly classified. If true, of course, such 

a defense would presumably render the underlying disclosure legal. 

It is entirely understandable, of course, that the Espionage Act nowhere refers to ‘‘classification’’ since the modern classification regime post-dates the Act by over 30 years. Nevertheless, given the 

well-documented concerns today over the overclassification of sensitive governmental information, the absence of such a defense—or, 

more generally, of any specific reference to classification—is yet another reason why the Espionage Act’s potential sweep is so broad. 

6 

Now, although statutory ambiguity is hardly a vice in the abstract, in the specific context of the Espionage Act, these ambiguities have two distinct—and contradictory—effects. Testifying before Congress in 1979, Anthony Lapham, then the General Counsel 

of the CIA, put it this way: ‘‘On the one hand the laws stand idle 

and are not enforced at least in part because their meaning is so 

obscure, and on the other hand it is likely that the very obscurity 

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

unsure of their obligations.’’ 

And to whatever extent these problems have always been 

present, recent developments lend additional urgency to today’s endeavor. In addition to the AIPAC case I mentioned earlier, a report 

released just last week by the Heritage Foundation and the National Association of Criminal Defense Lawyers highlighted the 

growing concerns among courts and commentators with the problems of vague and potentially overbroad criminal statutes, even in 

modern criminal laws, let alone antiquated laws like the Espionage 

Act. Indeed, just last month, the Supreme Court in the crush- video 

decision reiterated its concern with Congressional statutes that 

may chill constitutionally protected speech. As Chief Justice Roberts emphasized for an 8–1 majority, the Court ‘‘would not uphold 

an unconstitutional statute merely because the Government promised to use it responsibly.’’ 

Although it is not my place to make specific recommendations to 

this Subcommittee with regard to how the Espionage Act might be 

updated, it does seem clear that the current state of the law is 

counterproductive regardless of the specific policy goals one might 

seek to pursue. At the end of his decision in the Rosen case, Judge 

Ellis specifically suggested that the time was ripe for Congress to 

revisit the issue, and, Mr. Chairman, I want to thank you and the 

Committee for taking up his call. 

Thank you. 

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

for the record.] 

Chairman CARDIN. Thank you very much for your testimony. 

Mr. Smith. 

STATEMENT OF JEFFREY H. SMITH, PARTNER, ARNOLD AND 

PORTER, WASHINGTON, DC 

Mr. SMITH. Mr. Chairman, Senator Kyl, it is a privilege to be 

here this morning to address this very important subject. 

It is often said that the first responsibility of our Government is 

to provide for the security of our citizens, and doing so means that 

some information must necessarily be kept secret—from our adversaries and from public disclosure. And the criminal law plays an 

important role in protecting that information. 

There is no real debate over whether real spies, the Aldrich 

Ameses, the Robert Hanssens, the John Walkers, and the Colonel 

Abels of this world should be prosecuted. However, more difficult 

questions are presented as we seek to prosecute those who leak 

properly classified information to the press. It is these leak cases 

that present the hardest questions. 

7 

Before turning to the leak questions, let me make three modest 

suggestions that I think could enhance the ability of the Government to prosecute real spies. And Senator Kyl graciously mentioned a couple of these, as did you, Mr. Chairman. 

First, the statutes have a long list of documents that include 

things like signal book—I have no idea what a signal book is and 

doubt that the Government still has such things. I think one approach would be to replace it with the words ‘‘information in whatever form.’’ If that is too vague, perhaps another approach would 

be to say ‘‘electronic media’’ or ‘‘information in electronic form’’ in 

the list. 

Secondly, the statutes speak of ‘‘information relating to the national defense.’’ I am concerned that language is too narrow. It is 

true, as courts have, as Judge Ellis points out in his August 2006 

opinion, interpreted the term broadly to include information dealing with military matters and more generally with matters relating 

to the foreign policy and intelligence capabilities. But I do think it 

should be replaced with the term ‘‘national security’’ and adopting 

a definition similar to that in the Executive order, that is to say, 

‘‘the national defense or foreign relations.’’ And I suggest this because I have had some experience, particularly when I was at the 

Department of State, where we had a prosecution where we had, 

frankly, to strain to find documents that had been given through 

a real spy to the North Vietnamese Government that related to traditional diplomatic exchanges. 

Third, I suggest the term ‘‘foreign nation’’ be changed to ‘‘foreign 

power,’’ similar to that used in FISA, because we are dealing with 

al Qaeda and Taliban that are not foreign nations. 

Let me turn to the issue of those who leak classified information. 

Every administration in which I have served has suffered from 

leaks that have been truly harmful. And every administration has 

struggled to solve the problem, but none has had much success. 

The most recent legislative example was the Shelby amendment 

in 2002—pardon me, initially 2000. It was vetoed by President 

Clinton who said it would ‘‘unnecessarily chill legitimate activities 

that are the heart of a democracy.’’ And you will recall the Shelby 

language was limited only to Government employees, not to the 

press. 

But I think President Clinton’s veto put his finger on an important issue, and that is the fact that senior Government officials 

often talk to the press on background, with authorization, and provide information that is, in fact, technically still classified. But they 

do so anonymously and without taking the formal steps to declassify the information. What often happens is the journalists then 

will call around, and they will find out other information related 

to that part that has been disclosed to them that the administration did not want disclosed, but the person who gets the call from 

the journalist does not know that the backgrounder has occurred, 

and it can set in motion a tone that suggests to people that the executive branch is not serious about protecting secrets. I do not 

want to overstate this, but I do think the key to preventing leaks 

is discipline from the top. 

In other words, when an administration puts out sensitive information, even in the controlled fashion, in a legitimate effort to inVerDate Nov 24 2008 14:12 Feb 07, 2011 Jkt 063582 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63582.TXT SJUD1 PsN: CMORC
8 

form the public, they can hardly be surprised when, having permitted the press to pull on the first thread, the whole sweater 

unravels. 

The matter came up again in 2002–2001, I beg your pardon. Instead of enacting the Shelby amendment, the Congress directed 

Mr. Ashcroft, then the Attorney General, to submit a report, which 

he did in October 2002. I believe those recommendations still stand 

admirably, and I urge the Committee to take a look at those and 

to work with the administration to try to implement some of those 

ideas which were designed to prevent unauthorized disclosures. 

Leaks are a real problem, Mr. Chairman, and I think we need 

to address them. I have made a few specific suggestions, but I do 

not think it is necessarily a good idea to open the statute to try 

to make it easier to prosecute the press. I think that has a lot of 

issues that just may not—the gain may not be worth the candle. 

I want to end by quoting one of my most admired law professors. 

I was in law school when the Pentagon Papers case—when it was 

learned that Daniel Ellsberg had admitted to being the source to 

the New York Times. My professor, who had served a long time in 

Government, said, ‘‘I know what we should do; we should give him 

a medal and then send him to prison.’’ And that captures, I think, 

the hard choices that need to be made, and so I commend this Subcommittee for beginning to take a serious look at those hard 

choices. 

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

for the record.] 

Chairman CARDIN. Thank you very much for your testimony. 

Mr. Wainstein. 

STATEMENT OF KENNETH L. WAINSTEIN, PARTNER, 

O’MELVENY AND MYERS, WASHINGTON, DC 

Mr. WAINSTEIN. Thank you, Mr. Chairman and Senator Kyl, for 

inviting me to testify before you today along with my two co-panelists, both men of tremendous expertise in the area of counterespionage. 

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 really the lifeblood of our National 

security operations, and I have seen firsthand the important 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, the reality is that 

that information is compromised all too frequently. 

For purposes of today’s discussion, I will focus on two general 

types of unauthorized disclosures: first, where a Government official passes sensitive information to a foreign agent for money or for 

some traitorous reason, which is the traditional espionage scenario; 

and, secondly, where a Government official leaks secrets to the 

media, maybe out of some base self-interest or maybe out of a genuine desire to expose official wrongdoing and improve Government 

operations. 

A key element of stopping both types of disclosures is ensuring 

that in the appropriate cases we investigate and prosecute those 

responsible. As you know, however, the Department of Justice has 

9 

brought a number of strong traditional espionage cases over the 

years, but it has brought relatively few prosecutions for leaks to 

the media. That thin track record is not for lack of trying; rather, 

it is the result of numerous obstacles that stand in the way of 

building a prosecutable media leak case. Those obstacles include 

the following: 

First, as a touchstone matter, it is just downright difficult to 

identify the leaker in most cases, given the large universe of people 

who often are privy to the information that was disclosed. 

Secondly, there are limitations in the Department of Justice’s internal regulations, limitations that are in place for all the right 

First Amendment reasons, but they limit the ability to subpoena 

and get information from the one party who is in the best position 

to identify the leaker—i.e., the member of the media who received 

the leak from the Government official. 

And, third, even if you can get beyond that challenge and the 

leaker is identified, the agency whose information is compromised 

or was compromised by the leak is often reluctant to proceed because of concern that prosecution is just going to result in the disclosure of further sensitive information. 

Then, finally, even if the Justice Department succeeds in identifying the suspected leaker and indicting the case, it can expect to 

face a very vigorous offense with a wide variety of cutting edge 

legal challenges, the kind of litigation we saw in the Rosen and 

Weissman case that ultimately was dismissed. 

For all these reasons, leak cases—especially leak cases to the 

media—are exceptionally challenging, and the question for today is 

whether any of these obstacles can be addressed by changes to the 

governing legislation. 

While I do not see one sort of legislative silver bullet that will 

overcome all these obstacles, I do see a few areas of legislative initiative the Committee might want to consider. 

First, for example, the Committee might examine whether Government contractors are adequately covered by the espionage statutes. These statutes were passed well before the influx of contractors into the Government’s most secret or sensitive operations, and 

one of the critical statutes, 50 U.S.C. 783, covers Government employees but does not extend to contractors. Congress could consider 

putting Government contractors and employees on the same footing 

in that provision. 

Congress could also consider a number of amendments to the 

Classified Information Procedures Act to ensure better protection of 

classified and sensitive information in our criminal trials. I have 

listed a number of ideas for such amendments in my written statement, including several that Senator Kyl has proposed. And with 

the current national discussion about prosecuting more international terrorism cases in our Article III courts, I think now is a 

good time to consider amending CIPA to enhance our ability to protect sensitive information in our criminal trials. 

And then in a more general sense, I think Congress can use this 

hearing and any ensuing hearings to encourage respect at a fundamental level for our Nation’s operational secrets. Congress can 

send the message that it does not condone the unauthorized release 

of classified information about our National security operations. 

10 

And it can point out that whistleblowing is no longer a sufficient 

justification for divulging intelligence community secrets to the 

public or to the press now that the Intelligence Community Whistleblower Protection Act provides a mechanism where a Government employee who wishes to blow the whistle can actually take 

that information, that sensitive information, in a protected way to 

the Intelligence Committees up in Congress. 

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

current debate about the various national security policy issues of 

today, we should all recognize that the unchecked leaking of sensitive information can cause grave harm to our National security. 

Congress plays a very important role in addressing that problem— 

whether by legislation, by oversight or simply by exhortation—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 further questions you may have. 

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

Chairman CARDIN. Well, thank you, sir, and I thank all three of 

you for your testimony. 

Shortly, this Committee will start the confirmation process of a 

new Justice to the Supreme Court, and I think there will be consensus among all the members of this Committee that we believe 

that Congress is the entity to make our laws. And when we see the 

courts modify our statutes, it reflects either action on the courts 

that we find inappropriate philosophically, or a failure of Congress 

to deal with current needs, that needs to be addressed. And I think 

in the espionage world, it is the latter. Congress has not modernized the statute, and we really need to deal with it. 

A prosecutor needs to be apolitical. He must look at the statute 

and say, ‘‘Well, look, if the circumstances fit, it is my responsibility 

to bring the action.’’ So, therefore, Mr. Smith, when you refer to 

whether a leak is authorized or unauthorized, I am not sure I find 

that in the criminal statute anywhere. So it does raise a question 

as to whether the espionage statute in and of itself needs to be focused toward those who are participating in traditional spy activities, and whether the CIPA statute and others need to be strengthened in order to deal with leaks, or whether we can handle both 

under one statute or not. 

Mr. SMITH. The problem is that the term ‘‘authorized leaks’’ has 

sort of crept into the lexicon because that is what often happens, 

as we know. And my concern is that it also sets a tone that somehow enables or empowers others to leak. If they see that a very 

senior official is talking, then they are less constrained not to talk. 

In terms of handling it as a criminal matter, whether one could 

make those kinds of distinctions and rewrite the statute so that 

you focus on different types of disclosures that have different purposes in mind, I do not know. But it certainly undermines the effectiveness of the statute when this sort of practice occurs. And what 

happens, of course, is that you sometimes find an administration 

talking about A through D in a particular subject, and they are 

perfectly happy to have that out in the press and talked about because they think it is a legitimate issue. But then when somebody 

11 

else puts out F through G on that same set of subjects, they get 

furious, insist that it is a leak, and refer it to the Justice Department for prosecution and investigation. 

Now, you almost never find the leaker, but if you did, one could 

imagine a very difficult set of circumstances that prosecutors would 

face in trying to prove where the administration had chosen to 

draw the line between things that they were comfortable being 

talked about and things they were uncomfortable being talked 

about. 

So the question, I think, goes back to, as you alluded to in your 

opening remarks, about who—as did Senator Kyl—who decides 

what harm will result. That is principally a governmental function, 

and it is a very difficult line to draw. 

Chairman CARDIN. Well, I think it just raises the issue of whether we can deal with the espionage statute in isolation. CIPA and 

the whistleblower and the other related statutes that we have that 

are aimed at establishing practices that, when you leak information, you are violating those practices. 

Mr. SMITH. I completely agree, Mr. Chairman. If I was not clear, 

they are linked. There are a number of statutes that fit together, 

and one ought to look at them comprehensively. 

Chairman CARDIN. Is there a difference here in regard to those 

who sign a non-disclosure agreement with the Government and 

those individuals who do not sign a non- disclosure? Does that 

present a different hurdle in regard to current espionage laws or 

related statutes? Anybody care to—— 

Mr. VLADECK. I will take a shot at it. You know, I think, Mr. 

Chairman, it would depend, and I think that is part of the problem 

with the Espionage Act, is the ambiguity in the language. You 

know, various provisions refer to whether the disclosure was authorized or not, whether the individual was lawfully in possession 

of the information or not. 

I do not actually think it is a legally dispositive distinction, by 

which I mean I think you could prosecute an individual under the 

Espionage Act as currently written, whether they had signed a 

non-disclosure agreement or not. But I do think that that creates 

yet another ambiguity. And I suspect that the courts today would 

find, you know, perhaps more trouble in that ambiguity in the context of a Government employee who had not signed such an agreement; whereas, the one who had signed an agreement might be 

held to have waived whatever protections he might have had. 

But I have to say, I think this actually highlights part of the 

issue here, which is that the statute is written in such general 

terms at a time before these kinds of agreements would have even 

been contemplated by Congress, that if that is a distinction that is 

worth pursuing, I do not think the current text of the statute would 

support it. 

Chairman CARDIN. Well, one of the complexities here is the statute applies to private citizens, it applies to Government employees, 

it applies to Government contractors. So there is a whole mix of individuals that this one statute applies to. 

Mr. VLADECK. Well, if I may, I think Mr. Wainstein already referred to the issue of contractors. The oddity is that separate from 

Section 783, Section 793(f)(2) refers to reporting to a superior offiVerDate Nov 24 2008 14:12 Feb 07, 2011 Jkt 063582 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63582.TXT SJUD1 PsN: CMORC
12 

cer that you have the information and that you are potentially in 

possession of classified information. That presupposes that you 

have a superior officer. So even on the question of whether the 

statute applies to non-governmental employees, I think the answer 

just depends on how you cut it. And I think there are concerns with 

applying it so broadly when the language seems to contemplate 

chains of command that you might not see in the private workplace. 

Chairman CARDIN. Do any of you want to comment about the 

challenges to a prosecutor under the Garrity case where, if the information is required to be disclosed by your employer, it can compromise the ability of a prosecutor to bring that case? Is that something we need to deal with? 

Mr. WAINSTEIN. Yes, Mr. Chairman, I would be happy to handle 

that. The concern you are alluding to is a very real concern in 

criminal prosecutions across the board—whenever you have a Government employee who gets interviewed as part of an investigation 

into wrongdoing and is told as a condition of your employment you 

have to submit to this interview, that employee then gives a statement, and that statement then gets factored into an ensuring 

criminal investigation and prosecution. The problem is that statement was compelled by the Government, and then that can infect 

the whole prosecution. Because if you have a compelled statement 

that gets factored into the investigation and the prosecution should 

not have been using that statement or knowledgeable about the 

statement because it was compelled against that person’s rights, 

then it can affect the whole prosecution and really undermine it. 

There was the Blackwater case recently that has gotten a lot of 

attention where the case got dismissed for fundamentally that reason. 

It is an issue in espionage cases, though I think the way it typically plays out is there is a protocol in place where, if an intelligence agency, let us say the CIA, thinks there has been a leak, 

they make a referral to the Department of Justice, and there are 

these 11 questions. It is a standard form, and the agency whose information was leaked answers these questions, sends them to the 

Department, and the Department of Justice then decides whether 

or not to initiate a criminal investigation. If a criminal investigation is initiated, then typically the agency stands down on its administrative process so as not to cause that problem. 

So there is coordination that avoids that problem, but it is not 

foolproof. Every now and then, for instance, if a subject of an investigation is working in the agency and there is a criminal investigation going on, that person might just come up for his 5-year re-up 

on his background and have to go in and be polygraphed. If he is 

being told, ‘‘You have to be polygraphed’’ and is then questioned 

about ‘‘have you ever disclosed confidential information,’’ and that 

person then admits it, that compelled statement then gets into the 

investigation and can taint the whole investigation. 

It is an issue that we typically are able to work around in espionage cases. I am not sure that it is something that actually -for 

which there is a legislative fix that I can think of, but it is one of 

the problems. I could not recite all the obstacles to successful leak 

investigations, but it is one of the ones we have to deal with. 

13 

Chairman CARDIN. All right. Well, thank you. I appreciate that 

answer. 

Senator Kyl. 

Senator KYL. Thank you. 

Let me just ask a question. I gather all three of you probably 

know the answer to this. But in either a leak or an espionage case, 

I gather that the classification under the law of confidential, secret, 

and top secret, which—for example, I will just read the middle one. 

Secret is applied to information ‘‘the unauthorized disclosure of 

which reasonably could be expected to cause serious damage to the 

national security.’’ And there is a higher standard for top secret, 

a lower standard for confidential. 

Is the defense able to go behind that classification in effect to say 

this information really could not reasonably be expected to cause 

damage or serious damage. 

Mr. VLADECK. Senator Kyl, actually I think the case law is pretty 

clear that the defendant cannot raise that defense. I think there is 

a Ninth Circuit decision from the 1970s called United States v. 

Boyle that specifically deals with that question, where it would sort 

of defeat a purpose to allow the defendant to attack in court whether a document was properly labeled. 

Senator KYL. Do the others of you agree? So then the President, 

in effect, or his agents have determined that fact by classifying the 

information at a certain level. Is that correct? Do you all agree with 

that? 

Mr. SMITH. Yes. 

Senator KYL. Oaky. Then let me make this observation, and I am 

just going to quote—I am just going to pick on one of you, Mr. 

Smith, because you said it, I think, very well: ‘‘Those who become 

real spies should be prosecuted with the full might of the Government. Those who, without authority, leak to the media or others 

not authorized to have possession of classified information should 

similarly be prosecuted.’’ 

Now, that is what I want to get to here, that second category. 

I think we all agree that as to the first category the statutes can 

be modernized, cleaned up. That is something that you could usefully help us do, but it is that second category where we have some 

issues. And let me just posit two general points here and then ask 

the three of you to get into it. And in your testimony, each of you 

in some way or other dealt with these problems. You have got the 

problem of the official leak, and I think, Mr. Wainstein, you made 

this point in your opening statement, that there can be a concern 

arise among the people in the agency if they see a lot of official 

leaks being done apparently with some kind of authority. What 

does that do to the rule of law and their expectation of deterrence? 

To me, it undermines it. It is not good. But there is an easy solution to it. You either have someone authorize the leak who is in 

the position of authorizing it. Presumably that happened, if the excuse is this was an authorized leak of classified information. Somebody had to make the decision that it was OK in this for specific 

purposes to do it. 

Well, you can either have that and/or you can declassify the information just before the leak occurs so that there is no question 

about it. 

14 

Both of those seem to me to be preferable solutions to not prosecuting because somebody authorized it—or maybe somebody did 

not authorize it, and it is hard to distinguish. Reaction? 

Mr. SMITH. Since I have spent a fair bit of time thinking about 

this, Senator—and I think I raised it in my statement—the concern—you have put your finger on it precisely. In an ideal world, 

when—let us take a real case example. The Secretary of State— 

there is an upcoming ministerial meeting. The Secretary of State 

decides that the press should be ‘‘backgrounded’’ on what we are 

going to talk about. It happens daily. The story in the newspaper 

the next day says, ‘‘Officials close to the negotiations say’’ da, da, 

da, da, da, but they cannot disclose their names because they spoke 

on condition of anonymity. That was probably decided at the Secretary of State’s morning meeting the day before, cleared with the 

White House, and they backgrounded the press. 

Somebody made a decision, however, as to where that line would 

be drawn between what would be given to the press and what 

would not be. They also felt that they did not want to officially acknowledge that, let us say, the Deputy Secretary of State spoke on 

the record about this. They like the anonymity. It gives them flexibility. It gets out there—— 

Senator KYL. Anonymity is Okay. No problem there. 

Mr. SMITH. But the problem is nobody then formally declassifies 

that information so that the documents floating around the Government with the talking points and so on are still technically classified. 

Senator KYL. Do you think that is good policy? Or would it not, 

in fact, be a rather simple and, in fact, important way to solve this 

problem? Nobody should be leaking information. If the Secretary of 

State decides that it is a good thing to do, then I am all for it being 

done. But there should be a simple, quick process by which it can 

be done, either—you say cleared by the White House. Okay, so that 

no longer is classified information, correct? 

Mr. SMITH. Right. 

Senator KYL. Or—and I do not know how you can do this. I guess 

we would have to provide in law. It may still be classified, but 

there is an exception for certain officials to leak the information. 

Mr. SMITH. Well, I certainly would not be in favor of the latter. 

I think that is unmanageable. But the former, where—— 

Senator KYL. But that is what is being done today. 

Mr. SMITH. You are precisely correct, and nobody really seeks to 

prosecute those cases because nobody refers them to the Justice 

Department. What does get referred to the Justice Department is 

people who then leak around the edges of that and go further than 

the administration wanted. 

Senator KYL. Excuse me for interrupting, but because we do not 

have a clear procedure, it gets to be a pretty gray area as to whether you are—when you get the follow-up call from the reporter, are 

you really adding to that and so on? We need to make that line 

bright so that we do not get into the Valerie Plame series of telephone call assumptions as played out a year or so ago. 

Mr. SMITH. I think that is the solution. It may prove very difficult to administer and to make it workable, because one could 

imagine the Secretary of State not wishing to send around a piece 

15 

of paper that said, ‘‘Well, I authorize the Deputy Secretary of State 

to disclose this kind of information.’’ But in the absence of that, it 

does seem to me that you have these other problems, and if we 

could have a system that acknowledged that and somehow regularized it, I think it would be valuable for a variety of reasons, including hopefully discouraging others from leaking things that should 

not be leaked. 

Senator KYL. Yes, exactly. Thank you. 

Just in the 20 seconds I have left, comments by the other two 

panelists on that particular point? Then I will make my second one 

later. 

Mr. WAINSTEIN. I am sympathetic to your point, Senator, about 

the nebulousness of the authority issue, and, you know, I think it 

is worth pursuing whether there is a brighter line that would be 

in some ways more easily administrable and maybe even fairer. 

Mr. VLADECK. And just quickly, because I suspect we will come 

back to this, I also think that this conversation presupposes that 

we are all in the same place with regard to the current regime for 

classification and that we are willing to accept that the current regime for classification works adequately both in ensuring that the 

right information is classified and that the wrong information is 

not. And I guess, Senator, I would just say that is not an assumption I am necessarily comfortable making. 

Senator KYL. I appreciate that that is a different question, 

though, and it is one that deserves examination. But we have to 

start from a premise and—Okay, good. Thank you very much. 

Chairman CARDIN. I want to follow up on Senator Kyl’s point because I agree with him, and I want to just go through a couple scenarios. Some of it is personal because we get sensitive and classified information that we read about in the paper, and we are always puzzled as to how much we were restricted. 

But let us take that Secretary of State example and the person 

who is responsible to give the information to the communication 

person who is making it available on background, mistakenly gives 

pages 1, 2, 3, when they are only supposed to give pages 1 and 2. 

All the information is classified. 

Where is the legal responsibility there? I guess I do not understand authorized leaks from the point of view of the criminal culpability under the statute. To me, if you intentionally give our information that is sensitive, there is vulnerability. I understand the 

court is interpreting this with intent to harm our country, and this 

is certainly not with intent to harm our country. But how do you 

draw this line if you do not have in practice a procedure that Senator Kyl has talked about where the information is no longer classified as sensitive or classified? 

Mr. SMITH. Well, I would defer to Mr. Wainstein on the issue of 

prosecutions because that is difficult. But it does—you have put 

your finger on a critical question. I think that in the absence of 

that kind of a system, I do not know where the criminal culpability 

should be, but I have seen instances in which a Secretary of State 

asked an Assistant Secretary of State to background the press, the 

Assistant Secretary went further than the Secretary wanted, thinking, however, that he was carrying out what the Secretary directed 

him to do. The Secretary got very, very angry and eventually wrote 

16 

a letter to the Assistant Secretary. That was a disciplinary action. 

And it was a lack of clear communication about exactly what the 

Secretary wanted disclosed. 

Given the time pressure on these officials, it is hardly a surprise 

that that happens, but this is a criminal statute where clear 

lines—we need to make an effort to try to draw as clear a line as 

possible. 

Chairman CARDIN. That is my point and I think Senator Kyl’s 

point. There needs to be a process here, because let me take it then 

to someone who is not on the same page here. Someone—let us 

take from the Congress of the United States—who has been shared 

the same information in a classified setting and then sees it released by background without name by the administration. Is that 

Congressman then permitted to share that information and comment on it? I think the answer is no, but where do you draw the 

line? It seems to me that if you do not have a process that has 

some transparency to it on the information that is permitted to be 

released. It is a very fuzzy situation, probably not too much documentation to back this up, and if you get an aggressive prosecutor—who has independence, remember. Our prosecutors do not 

have to wait for an invitation to investigate. They can do that on 

their own. Aren’t we going down a path that could be extremely difficult to administer? 

Mr. SMITH. It is extremely difficult to administer, and it is often 

not fair. I have known Members of Congress of both parties to complain that the administration will come up and brief the Congress 

on some particular project or a program and say this is top secret, 

you cannot talk about it, and then it leaks that very afternoon. And 

it leaks in a way that the Members of Congress disagree with because the administration has decided to put out their version of 

things, and Congress feels constrained from talking to the press 

and saying, well, we disagree with that, we think it is bad policy. 

And they are inhibited because of the classification that the administration has put on it. It is not right. I have seen it done—this is 

truly bipartisan. It is done by both parties in both administrations, 

and it is not right. And it is certainly not right then to sort of 

threaten prosecution to somebody, particularly a Member of Congress, who chooses to say something to the press that is counter to 

what the administration has put out. 

So greater transparency is critical. How one does that realistically would be difficult. But you are both correct that it is not right 

the way it is currently working. 

Chairman CARDIN. Well, I think the answer is what Senator Kyl 

is suggesting. There has to be a transparent process for declassifying that information if it is going to be made available to the 

public. I mean, the Secretary of State is going to have to say these 

two pages are just no longer classified and they are available. 

Therefore, we all know that, and we can comment on it. But to say 

that it is still classified but the press gets it on background only, 

preventing the open discussion of it by those who have knowledge 

of its content is wrong. 

Mr. SMITH. There is a countervailing interest, which is the hard 

part here, which is that it is important for senior administration 

officials to put information in the public so that the public will 

17 

know what is going on and be talking about it. They often do not 

want to do it in a way that specifically ties officially the administration to that statement. I mean, the FOIA litigation over the 

years has recognized that as a viable distinction between something that leaks and later an official acknowledgment of the leak, 

which then does declassify it. So it has its useful part. 

But what troubles, has always troubled me about it is that there 

is—who is the decider here? Who gets to decide what is classified 

and what is not? And I have seen administration officials try to 

play it both ways, and then to use the criminal law to try to enforce 

that seems to me deeply troubling. 

Chairman CARDIN. I want to ask one more question, if I might, 

and that is about the Whistleblower Protection Act, S. 372 in the 

111th Congress. I think all three of you are familiar with the operations of the CIA. The whistleblower statute that we have provided—how does that work with the CIA trying to carry out its 

mission? Is this the right way to provide relief for employees who 

have concern? Or do you believe it prevents the CIA from—or hampers the CIA in its mission? 

Mr. SMITH. The answer is I do not know, Mr. Chairman. I would 

be happy to think about that and get back to the Committee. In 

my experience with the agency over the years, it has not been a 

problem. But I think it is a question, and with your permission, let 

me think about it a little bit and get back to the Committee. 

Chairman CARDIN. I appreciate that. 

[The information referred to appears as a submission for the 

record.] 

Mr. WAINSTEIN. I’d like just sort of to talk about the general notion of having a mechanism in place where members of the intelligence community, employees of the intelligence community who 

see something going wrong that they want to disclose, that they 

can take it through classified, protected channels and get it to the 

Intelligence Committees whose job it is to practice oversight and to 

root out wrongdoing, root out problems. 

I think that is exactly the mechanism we need to perfect, and I 

have not studied the new bill, but to the extent that more work 

should be done to make sure that that process is in place, it works 

well, there are user-friendly procedures in place so that whistleblowers can get that information up to the Intelligence Committees 

through the IG, the CIA IG, up to the Intelligence Committees, and 

then not be retaliated against for it, I am all in favor of it. And 

I think it is important because the more we have a workable process in place for that, then the less people can justify their unilateral leaks of classified information on the grounds that they were 

trying to blow the whistle. And a lot of leaks to the media are that, 

and they are well intentioned at some level. But at the end of the 

day, they are unilaterally disclosing sensitive information that can 

cripple our operations. 

Mr. VLADECK. If I may briefly, Mr. Chairman, I would just add 

to that. I think relying on the whistleblower statutes makes a lot 

of sense subject to two points. The first is that presupposes that either the general counsel of the CIA or the Intelligence Committees 

are in a position to act on this information. And there has certainly 

at least been some suggestions by commentators and critics that 

18 

the law actually does not necessarily allow especially the Intelligence Committees to take necessary steps beyond that. I think 

that is a difficult question. 

Secondly, even if we all agree that that is the exact process we 

want to be followed, the Espionage Act is silent as to its interaction 

with the Whistleblower Protection Act. And so at the very least, I 

suspect we might find common cause on the notion that one could 

specifically amend the Espionage Act to exclude protected disclosures under the various Federal whistleblower statutes so that we 

do not have the concern of a chilling effect that it might be unclear, 

even where the whistleblower laws appear to apply, that these disclosures will not subject the relevant individuals to prosecution. 

Chairman CARDIN. Thank you. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. This is a good example 

of a hearing that could actually produce something useful as opposed to much of what we do. 

Let me get to—— 

Chairman CARDIN. I think that is a compliment. 

Senator KYL. It is very much a compliment. 

[Laughter.] 

Senator KYL. The second main thing that I wanted to get to, we 

talked during my first questioning about the so-called official leak, 

and I think we came to a conclusion that there needs to be a 

brighter line and a better transparency so that the official leak becomes the authorized official statement of unclassified information 

somehow. 

The second is the sort of good motive leak, either an individual 

thinking ‘‘I know better than the President what the administration’s policy ought to be, and I am going to leak some information 

that undercuts his policy,’’ knowing that it is going to get out in 

the public—and it was Jonathan Pollard; I remembered his name— 

or maybe even this AIPAC case. I only know what I have read 

about it in the newspaper, but it seemed to me that I recall one 

of the defenses, or at least discussions in the media was that whatever information may or may not have been exchanged there, it 

was not with an intention of hurting the United States, and that 

was Pollard’s defense. 

But it seems to me that that is also dealt with fairly easily by 

two things, but the statute maybe needs to be amended to guarantee this. Mr. Vladeck, you got close to this, I think, in one comment you made. 

First of all, there are two things, it seems to me, that easily respond to the mens rea requirement here. One is the classification 

itself, if, in fact, the classification is a per se determination of harm 

if the information gets out; and, second, the mens rea here would 

consist of two other factors: one, knowing that it is unauthorized 

and intentionally leaked or put out. In other words, you did not 

mistakenly pick up the wrong page—I think maybe, Mr. Smith, 

that was your example. You were supposed to release page 2 and 

3 and you mistakenly released page 1 as well. You would have to 

know that what you released was unauthorized; and, second, you 

would have to do that intentionally. And the harm requirement 

would be satisfied by the classification itself. 

19 

It seems to me that as to the person who is doing the leaking, 

a statute that was clear in those respects would satisfy everything 

that we need except for—and I am leaving aside, at least for the 

moment, the publication by a media corporation. In other words, 

we are not talking about here, at least for the purpose of doing this 

in pieces right now, prosecuting someone for publishing the information. Leave that aside for a moment. I am just talking about the 

person who leaks the information. Wouldn’t that satisfy the statutory requirements, and if we stated it that way, it would be much 

clearer and much easier, therefore, to prosecute? 

Mr. SMITH. Let me take a first cut at that, Senator Kyl. If this 

statute that you are discussing is focused on the Government employee or the person who had authorized access to the classified information, I agree with you, that is pretty close to what the provision in Title 50 does. 

I am uncomfortable with having it be a per se determination that 

if the President classified it, that is sufficient. I still think the Government should have some requirement to prove that that, in fact, 

harm could reasonably be expected to occur because I do not—I am 

a little suspicious of the administration overclassifying things. 

Senator KYL. If I could interrupt you, though, I thought you all 

three agreed that under the case law today, it is not a defense that 

the information—in other words, the defense does not go behind 

the classification to determine the reasonable probability of harm. 

Mr. SMITH. You are correct. That is what the case law is. But I 

am a little bit of an outlier on this. 

Senator KYL. So you are suggesting that standard may need to 

be modified in some—— 

Mr. SMITH. Yes. 

Senator KYL. Okay. 

Mr. SMITH. But the hard part is then when it is then given to 

somebody else who does not have authorized access to it and 

whether the statute that you have just outlined should be applied 

to them. And, again, I think I am pretty comfortable with it absent 

the—— 

Senator KYL. Well, let me just argue with you there 1 second. 

First of all, you do not want judges who obviously do not have the 

experience in dealing with classified data that the executive branch 

that does the classification does. That has been a criticism of giving 

judges this ultimate determination. 

Secondly, if the problem is that information is too easily classified, the individual who is doing the leaking still understands that 

his leak of that is unauthorized, whether he disagrees with that 

proposition or not. And it seems to me there are other ways that 

you deal with that other than just deciding to ‘‘take the law into 

your own hands.’’ 

Mr. SMITH. I completely agree with you. My only concern is that 

I think there does need to be something more to put somebody in 

jail than simply somebody put a classification stamp on it. I am 

troubled with that mere fact. 

Mr. VLADECK. If I may jump in, I would just add to that, Senator 

Kyl. I also think it is worth noting that the case law to which both 

Mr. Smith and I adverted largely pre-dates the enactment of the 

Classified Information Procedures Act and largely pre-dates the 

20 

sort of belief—the creation of a body of case law where Federal 

judges have, in fact, become expert to degrees that we may disagree about, at least have some experience in handling classified 

information in criminal trials. And so it is possible that some of the 

concerns that led to these decisions, at least initially, have been 

abated at least somewhat by CIPA. 

Senator KYL. Mr. Wainstein. 

Mr. WAINSTEIN. You will recall that Attorney General Ashcroft 

was asked to look at this issue, look at—I guess it is called the 

Shelby bill, which essentially said what it is that you are referring 

to, Senator, basically said that if you are a Government employee— 

I think also former Government employee—and you knowingly and 

intentionally leak classified information, that you committed a 

crime. 

I think the concern about overclassification is not case specific; 

it is just sort of the broader concern that it puts too much authority 

in the hands of the President to decide what is classified and, 

therefore, what can be criminally—when someone can be criminally 

sanctioned for disclosing it. And it might give the Executive too 

much leeway to maybe classify information that really is more embarrassing and less actually a matter of national security. That is 

sort of the broader issue. 

And then, of course, there is the question of even if you had a 

statute like this, would it really help increase the number of prosecutions? In some ways, it would be easier because, I mean, it 

means that the prosecution would not have to prove up the harm, 

the potential harm, so you would not have to go into, let us say, 

talking about how the information that was disclosed was about 

some operation over in Europe that we were doing and how that 

was—really that disclosure was harmful because that operation 

would have given us the following intelligence benefits. Whenever 

you have to do that in order to make your case, you stand the risk 

of having to disclose more information in discovery and in the actual presentation at trial. 

A statute like this would lower the burden, make it easier to 

meet the burden, because all you have to show is it is classified. 

And you would not have the same danger of releasing more classified information. But I think that there are those countervailing 

concerns about over-classification. 

Senator KYL. Do you mind if I just follow up? You say it would 

lower the burden, but I am still confused. While the—is it Boyd? 

What is the Ninth Circuit case? 

Mr. VLADECK. I am sorry. I believe it is United States v. Boyce? 

Senator KYL. Boyce. Well, that case may have pre-dated CIPA. 

It is at least still acknowledged by the three of you as probably the 

law in this situation until it is further refined. So would what I am 

proposing really be a change from the law, at least as it pertains 

to going behind the classification? In other words, would it be setting up a higher standard? 

Mr. WAINSTEIN. It would not be setting up a higher standard. 

The prosecutor would not have to prove the harm element. 

Senator KYL. But does he have to prove that today beyond the 

classification? 

21 

Mr. WAINSTEIN. Yes, the classification helps, but you have to put 

on additional evidence, typically, and that is what happens. In fact, 

that is often one of the reasons why a case like this might not be 

pursued because of the concern that you have to disclose sensitive 

information in doing that. 

Senator KYL. So you have to do that—I am now a little confused. 

Maybe you can see why. 

Mr. VLADECK. Senator Kyl, if I may, and I hope this alleviates 

the confusion. I think that the differences between whether the information counts as national defense information under the Espionage Act versus whether the mens rea that the Supreme Court has 

read into the statute in the Goren decision that the defendant 

knew that the information both was national defense information 

and could harm—knew or had reason to believe that the information, if disclosed, could harm the national security of the United 

States. So it is not—knowing that it is classified in and of itself 

may not be enough, especially if any reasonable person would be 

hard pressed to see how that information, if disclosed, could cause 

harm. 

Senator KYL. So, again, with your permission—and the two of 

you agree with that reading? 

Mr. SMITH. Yes. 

Mr. WAINSTEIN. Yes. 

Senator KYL. So there is a requirement that the Government, 

with some degree of burden, prove that the individual knew that 

national security could be harmed above and beyond the fact that 

he knew he was leaking classified information. 

Mr. VLADECK. That is my understanding of the cases, and I think 

just to go back to Chairman Cardin’s point from before, the Supreme Court, I think, has adopted that construction largely to save 

what it thought would be constitutional difficulties with the lack of 

such a requirement, at least in 1941. 

Mr. SMITH. And my experience with these cases is the fact that 

it was classified is used as evidence to establish that it relates to 

national security—pardon me, relates to national defense and that 

its disclosure would cause harm. So it is—the first thing that prosecutors do is say, Was this properly classified and why? 

Senator KYL. Well, if I could then, just to summarize my view 

on this, it seems to me, with that clarification—and I really appreciate that—that with that further requirement, it is hard to justify 

a good-motive leak when, in order to prosecute such a case, you 

would have to establish that he knew that he was potentially 

harming the national defense of the United States. 

Mr. VLADECK. Senator Kyl, this just goes back to a point I made 

in my opening statement, and perhaps you and I just disagree on 

this. I think there is a difference, though, between knowing that 

the information you are disclosing may potentially harm the 

United States and having that be the motivation for why you are 

disclosing it. There might be good faith separate from your knowledge. Perhaps you are not the right person to make that calculation 

if you are the Government employee, but I would resist the assumption that an employee could never have good faith simply because he knows that the information is classified. 

22 

Chairman CARDIN. On that point, Senator Kyl, it seems to me 

you are all saying, though, that, leaving the publication issue aside, 

as Senator Kyl has suggested—we really do not want that to be the 

focus of our work here today. But what you are saying is that you 

do limit this to Government or former Government employees like 

the so-called Shelby bill, that it should not apply to private individuals. I am again talking about the Rosen case, clearly one that is 

before us. Do you believe that is a different standard? 

Mr. SMITH. In the case of the person who had—the laws and the 

regulations speak in terms of people who had authorized access. 

That is either Government employees, former Government employees, or contractors. There I think the Government has been able to 

prosecute these cases. I think the fact that it was classified, that 

the individual knew it was classified, and disclosed it without some 

kind of formal authority, that ought to be prosecuted. In the case 

of the—the Rosen case, you will recall that the man at the Department of Defense named Franklin who gave them the information 

was prosecuted, and he is in jail for a long time. That I think is 

proper. 

I think what we are talking about is making it easier to prosecute those cases by doing some of the things we are talking about, 

perhaps working in some of the idea that if it is properly—that if 

it is classified, that should be sufficient, but the Government would 

still have to—I think we are all, at least most of us are agreeing 

that simply the fact that it has got a classification stamp on it 

should not be sufficient to send somebody to jail for 25 years. I 

think you need a little bit more than that. 

The difficulty comes in when it gets into the hands of somebody 

who did not have authorized access. If that person then passes it 

to a foreign government intentionally knowing that the foreign government is interested in it, then I think that, too, should be a 

crime. If the person to whom it is passed seeks to publish it, either 

in a newspaper or puts it on Facebook or a blog someplace, then 

that gets a little bit harder because presumably the person is putting it out there because he or she believes that somehow it is important to talk about. That still, in my mind, is a crime, but the 

motive and the purpose gets a little bit more complicated there because they may genuinely believe that it is a mistake that this particular issue is not being discussed. 

So perhaps we need to have a statute with different types of action, different intents, and different punishments, depending on the 

actor and the intent. 

Mr. VLADECK. And if I may, I come at this from a slightly different perspective, from the sort of academic long view. I think the 

problem, Mr. Chairman, with going past the individuals who are 

authorized to have the information is that it becomes very difficult, 

as Mr. Smith says, to draw the line once you get into the unauthorized access category. You said you wanted to bracket the question 

on publication. I think that makes sense. But I think that is the 

elephant in the room here, which is that once we cross the line 

from those individuals who are legally entitled to receive the information to those who are not as a category, that question comes into 

the conversation. And so—— 

23 

Chairman CARDIN. It certainly does, but we are really trying to 

concentrate here on people who specifically are giving information 

out to individuals more so than the news media issue. 

Mr. VLADECK. And I think that that goes to—I agree with Mr. 

Smith’s suggestion that we might think of—if I take it to be a suggestion, that in those cases we might look at a more rigid intent 

requirement as compared to the Government employee or the contractor who should simply by virtue of his office know and be required to hold onto this information. The private person we might 

think about changing the standards because of these concerns. 

Chairman CARDIN. Senator Kyl. 

Senator KYL. Well, Mr. Chairman, let me just say I have got a 

lot of other questions. I also have a lot of other meetings because 

we were so late here. This is an excellent panel. I really hope that 

we can call upon you as we start to try to formalize how we might 

want to respond to all of this for your advice in helping us craft 

ideas for our colleagues perhaps. I really appreciate all three of you 

informing the Committee. It was a very helpful hearing, and I hope 

we can count on your free advice in the future here. 

Chairman CARDIN. Well, let me just echo what Senator Kyl has 

said. The purpose of this hearing was for us to gather information, 

to get better informed, and to start a record in this Committee as 

to the challenges we have. It clearly will require us to look beyond 

just the espionage statute itself. CIPA clearly is involved, the whistleblower statutes. It is certainly an issue also concerning not just 

the passing on of information but publishing. We understand that 

is an issue that ultimately comes into the equation, but what we 

were looking at is to try to set up the right formula for the types 

of activities that compromise our National security. I think as Mr. 

Smith said, changing the definition is one I think we all would 

agree needs to be done. 

This has been very, very helpful to us. The hearing record will 

remain open for 1 week for additional questions and statements, 

and I thank our three witnesses. We stand adjourned. 

[Whereupon, at 12:13 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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