clerk will read a communication to the senate. the clerk: washington, d.c., november 1, 2010. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable christopher dodd, a senator from the state of connecticut, to perform the duties of the chair. signed: daniel k. inouye, president pro tempore. the presiding officer: under the previous order the senate stands in recess until the hour of 9:00 a.m. on tuesday november 4 -- on thursday,

november 4 -- on thursday,

>> now i look at prosecuting and defending cases involving classified information. this form was part of a conference hosted by the first amendment center on how the media and criminal justice systems both deal with questions of national security. analysts include nbc news investigative reporter michael isikoff. this is about an hour and a half.

>> i wanted to introduce, actually little partner in crime, baruch weiss for the past five years. and i have been any number of matters together, and a number of sense of national security mattersss together.ed and i told you i would be a busy that i will be short. e am baruch weiss came into the private sector as a white-collar trial lawyer and defenseense attorney after 20 years in thern uthernment, 18 years in the southern years in the southern district of new york holding position possible, after the eastern district ofirginia, virginia, the united states, it stane heck of an office and baruch was there for 18 years, i think he outlived about six or seven different u.s. attorneys during his tenure and handled sf i t of the highest profile cases in that office. worked he worked at the department of have ry here in washington. he has a wife is a terrific reporter for the "washington

post" compan." -- so he knows firsthand, and that in addition to the department of treasury, after the organization he went to the department of the homeland security and oversaw himself and close to 500 lawyerv in different divisions of they r department of homeland security. so he has lots of knowledge of many different perspectives. i'm happy to introduce my fellow partner, baruch weiss. .applause] >> thank you all.i t i think we're going to have a sanel that is interesting this afternoon. we had this morning. if you recall, we are going to be discussing the issues that arise in prosecuting and defending cases that involve the leak or disclosure of classified information. i am going to introduce, of course, as is traditional, our terrific bunch of panelists that you will see in a moment. what i'm going to do first is

give you a little bit of a sense of what we are going to discuss, and i think you appreciate the we have to discuss it all the more. what we are going to discuss really feeds off what you will hear this morning, and that is we are going to assume that there was a disclosure of classified information by a government official to a journalist or a lobbyist or an academic, not only journalists. these things happen in think tanks, at academic panels and so on. and we are obviously going to put aside cases where somebody said here is the recipe for the plutonium bomb would you give it to osama bin laden. we are going to talk about some of the more common, interesting, and difficult cases. there is a disclosures of usually some kind of policy information, and it then comes to the attention of law enforcement. we will posit that this information, law enforcement has

a good reason to think it should not be disclosed, and the recipient, whether the journalist or the lobbyist, has a very good reason to think that there is a public interest in disseminating the information, sort of the paradigm. the paradigm actually happens quite a bit. we will assume it is an oral disclosure because we will talk about the differences between disclosure of oral information versus a document. so to discuss this, we will have folks that come out of the prosecution perspective, a defense perspective, and then we have an expert in the classification process, which is very important in understanding the challenges we face, and of course we have the press represented as well. i will go down starting with bill leonard. bill is on my left, you're right. he is now the chief operating officer of the national endowment for democracy.

for 34 years, he was in the federal government, and he served -- the last position he served in was as director of the information security oversight office. a very, very important although not necessarily known office in the public, but he was responsible to the president for the policy oversight of the executive branch's classification system. essentially what it meant is, to put it in the more washington vernacular, he was the classifications are and have access to -- the classification czar. it was his job to make sure that what was supposed to be classified is and what is not supposed to declassify it is not. before his appointment to the director of isoo, he served in the defense department.

i should say as a matter of personal disclosure, the day he resigned, i sent him a letter. at that point the aipac espionage case that you heard of -- we were in the midst of the defense and we were desperate to find experts who would be able to testify on our behalf as to the nature of the information that was allegedly disclosed in that case and how dangerous or not dangerous it was to national security. bill leonard was on my list, and fortunately he was retired with nothing to do. he eventually agreed to serve as the defense expert in that case. next to bill, we have mike isikoff. mike is a very prominent journalist, national investigative reporter with nbc news. he was named the nbc news national correspondent in 2010,

reports for the nbc nightly news, "today," and msnbc. he is the author of two "new york times" best-selling books, "hubris: the inside story of spin scandal and the covering of the iraq war." he joined this week after being a reporter with "the washington post" in december of 1981. next to him, moving down the road, we have lucy dalglish. with losing and with mike we will get the journalist's perspective. the reporters for freedom of the press, of which lucy is executive director, is a voluntary association of news editors and reporters dedicated

to defending the first amendment. before assuming the position 10 years ago, she was a media lawyer for five years with the firm of dorsey and whitney. she was also a reporter herself, a reporter and editor at the st. paul pioneer press. in 1995 she was report -- she was awarded the piarist honor bestowed by a society of professional journalists. -- the highest honor bestowed by society of professional journalists. last on the road is ken wainstein, currently a partner -- he had a very long and successful career in government service, as you will see, he's going to i think bring to our discussion the government perspective on this. he served as a federal prosecutor, assistant u.s.

attorney both in the southern district of new york and then in washington, d.c. in the interest of full disclosure, we have been friends since he served as a federal prosecutor. we served together as federal prosecutors in manhattan at the same time, so if you notice we are particularly disrespectful of one another, that is a disrespect board of deep respect and fondness and friendship. after he left the office, for those of us who served as the u.s. attorney's office for the southern district of new york, he did a few other things not nearly as important as the years we served together as a prosecutor. for example, he was appointed director of the executive office of u.s. attorneys in the justice department. he then joined the fbi and served as its general counsel. he then was appointed the u.s. attorney, chief prosecutor in washington, d.c., where he oversaw the prosecution of a series of high-profile white- collar cases.

he then was confirmed by the senate in a new position, particular to our discussion today, the assistant attorney general for national security at the justice department, which essentially met that while i was defending the eight -- which essentially means that while i was defending the aipac defendants, he was prosecuting the aipac defendants. he then left to serve as the homeland security adviser to president bush, and then left or far practice -- left for private practice with 0 melveny & myers. we have the press perspective and we will have some important insight on the classification process which is very important in trying to understand how these things work. and i will play the role of moderator but also be on the defense side to make sure that we get all the perspectives

covered. all right, so i think we are ready to roll. ok. the problems that we are going to discuss with the panel that typically are found in a prosecution, investigation a classifiedf an information case, we will discuss the prevalence of disclosures that we discussed by a panel this morning. we are going to discuss the problems of over classification, what internal restraints we bring to these cases, the age of the statute, the age shows of the relevant statute, the first amendment issues, and so on. we will go through these one by one. let's start picking up on what

we discussed in the panel this morning. talk about, first of all, a prosecutor who is appointed to investigate and prosecute week's first has to get a sense of what goes on out there in the world of disclosure. we heard a lot about that this morning. i want to pick up a little bit on that today. so let me turn first to mike. let's turn to mike and we will get the press perspective. mike, when you cover your stories out there, how often do you get -- without asking details on a particular case -- some sense that the information you get, that it might be classified? >> well, when you are writing about stories dealing with the intelligence community, dealing with terrorism, national security issues, you inevitably are going to be brushing against information that is

classified. there is always going to be a classified dimension to almost any discussion you have on the issue, because it is issues that the intelligence committee deals with -- the intelligence community deals with. but i cannot emphasize enough what i think is the principal theme, and arguably the principal theme of any discussion of this kind, which is that everybody who has looked at this issue -- and bill is the expert, but anyone who independently looks at it agrees -- there is way over classification. if you just use the yardstick, "is classified come out it could shut down almost any phone classic -- "it is classified," it could

shut down almost any conversation that the public has a right to know about and that the government wants to speak about. so everybody works around the fact that they are dealing with matters that, you know, technically, strictly speaking might involve classified information, and then people dance around it because everybody knows, of course, somebody taking the strictest eye could say, "is classified, i cannot talk about it." it will shut down any reasonable sense of democracy if we use "is classified" as a form of disclosure. >> is that commonly known and understood by the press, lucy,

that covers these stories? is this a secret that few reporters know, or is that widely know? >> i think most americans know it. you know, what is the saying -- the ship of state leaks from the top any time someone goes on "meet the press," they are divulging something that is classified. i cannot think of any reporter i have ever dealt with that did not know there was over classification. the reporters i typically do with it and call for advice, most of them have access to their own in-house counsel, but sometimes they do not. the first thing you tell them is, ok, i do not want to know where you are getting this information, but are you confident that it is accurate? have you -- checked it? and what is going to set the intelligence community's off easy to identify sources and

methods. by the way, it would be a really good thing if you are extremely protective of those two things. >> as we talk about over classification, let's turn to you, bill, with your crown of classification czar. >> i have advocated. >> is there and over classification? you have looked at information. the the problem exists, and to what extent? >> clearly, over classification is rampant. to use just one example that is in the news today, that is the wikileaks data that we have experienced over the past couple of months. in no way, shape, or form would i even begin to defend the reckless conduct that has resulted in that man's

disclosure. that will literally put lives at risk. but the one thing that i do not see enough discussion is that those disclosures also reveal how reckless the government has been in terms of applying a critical national security tool, and that is the classification system. between the afghan diaries and the iraq diaries, there has been close to 500,000 records that have been disclosed, at least 97%, 90% of them classified. there is absolutely noticed -- there is absolutely no different show mission between -- the irony of it is we have a very simple process per the whole idea behind the

classification system and a uniform set of markings is to clearly put on notice to both the holder of information and the recipient of information -- this is information that is sensitive, the unauthorized disclosure of which could cause damage to national security. 120 individuals for months, to review the 90,000 afghan-related documents, and i can assure you that in terms of doing a review, to determine what was sensitive and what in fact could cause serious damage, classification markings were entirely irrelevant to that review. they would have to literally go through them line by line. so, you know, one of the things that i find disappointing about this is that there have been rightful condemnation on the leak by some of our government house leaders.

but i have yet to see any of our government leaders accept responsibility for what is directly under their control, and that is the reckless manner in which the critical national- security tool is in fact applied. >> let's turn now to ken from the prosecutor's perspective. if we accept the view of the zarmer classifications c that there is significant over classification, what challenges does that present to the defense department when we say we want you to open an investigation and prosecute him. we are very angry and upset. where does that lead you? what are the challenges you have to face in terms of balancing the requests of the agency with the over classification issue we have discussed? >> there is actually a protocol. if an agency is the victim of a leak and their information has gotten out of the public domain

and they are required to provide a referral to the department of justice for us to look at, there is a standard set of 11 questions that the agency builds out that it goes into whether this information will be publicly available, which is obviously putting into the prosecution, how sensitive it is, that of thing. they make a referral to the department. the department then looks at the referral, brings in the fbi, and makes an assessment as to whether we should prosecute the case. given that there have not been that many lica prosecutions, you can imagine the vast majority of these referrals do not that many in the pacific -- given that there have not been that many in the prosecution's, you can imagine the vast majority of these referrals to not get prosecuted. it requires more than mere classification. so you might not meet the elements of the statute, but be, it might be something under which you hold your fire for

serious leaks, so we might say there is that datapoint that got out there that is classified, but that is not the crime of the century and we do not want to stoke up a prosecution that will -- it >> there is an important point to be made, that oftentimes what i encounter is that the government simply asserts classification. in fact, the governing executive order actually establishes standards for classification. you know the old adage, any prosecutor worth his salt could indict a ham sandwich? you could say the same thing that any classifier could classify a ham sandwich. but to do that, you need two pieces of bread and a piece of ham. it is the same thing for classification. even though the standards are relatively minimal, there are standards that have to be met. one of the things that i am constantly chagrined at is how often i encountered agencies

simply asserting classification, and even more distressing is one other branches of the government, be it judicial or the legislature, just automatically defer to that assertion without saying, wait a minute, executive branch, you have your own standards. >> speaking of the ham sandwich, it is it true -- we heard early this morning -- that even sometimes the newspaper articles get -- is that possible under the classification standards? if so, how? >> microphone died. >> do you hear me at the podium? >> yes. >> so is it possible that a newspaper article would be classified? i hope the answer is no, but if it is yes, then how? >> that is one of the standards of classification, that the information must be originated

by or otherwise under the control of the u.s. government. another standard is that it has been significantly delegated the authority, and there are only 4000 people in the executive branch to originally classified something, has to be on record either orally or in writing saying specifically that this piece of information is in fact classified. so there are in fact standards -- >> can i give you an example? because it is something that pops up in my mind from recent reporting i had done. back in i think it was 2007, i had done a story about an extraordinary rendition case that got some attention during the debate over the iraq war. a sheik who had been rendered to egypt and then subjected to

egyptian interrogation, coughed up information that was used by the u.s. by the bush administration to justify the invasion of iraq, that there was chemical, biological weapons training by the iraqis of al qaeda. when he was returned to u.s. custody, he recanted the whole thing, said he made the whole thing up just to stop the torture he was being subjected to, and the egyptians in the cia had to withdraw the reporting on that. there was some cia cables that were released by the senate intelligence committee in late 2006 on this that prompted a letter from a bunch of members of congress to the cia and to the bush white house asking for more information about him, what did it know about his interrogation, what happened to him. i reported about that at the time. in 2007 i posted a copy of the

letter on our website. a few months ago, the aclu had filed a request for information about extraordinary rendition cases, got back a bunch of responses. they asked about the case, and i noticed there were huge reductions in the responses, including a letter written by members of congress to the bush white house with big black-out parts of the letter of the cia saying these portions of the letter were classified. well, i had written about the letter three years earlier, i posted it on our web site. it was still on the web site of one of the members of congress that wrote the letter. this classified letter. and i wrote a story about it a few days later, and the cia said, well, ok, we will declassify this letter that has been in the public domain for three years.

can something in the public domain the classified? yes, it happens all the time. unless someone was around to call them on it, it would remain classified >> at what point in the bus at one point in the case -- >> at one point, this point came up with a particular prosecutor who was responsible for guarding the classified information in the case. and i said, how can it be -- why is it that you have newspaper articles that are classified by the fbi or the cia? and he said, no, it can be done. it is not the article itself, it is the fact that the fbi was interested in it and was collecting it and saving it, or the cia was collecting it and saving it, that they would tell our adversaries nothing. >> it is in the newspaper.

[laughter] >> they may not have known that. we have now established that one of the obstacles to pursuing -- initiating and pursuing a leak case, it is the simple fact that we have this rampant over classification. overclassification, and we have other things to discuss. one can understand the difficulty presented ken was talking about. the first amendment comes to mind for most folks. we will talk about some other obstacles that are just as serious as the first amendment, but less obvious. but let's talk about the first amendment. let's first begin with a discussion -- let me turn to