that you could ask is everybody could hear it. >> and terms it actually wrote the opinion piece in "usa today" whether it should be treated criminal or a hybrid or conflict or a higher bid there of soap looking at that. >> i appreciate the question because i do believe terrorists are not traditional prisoners of war or traditional criminals. i do believe it is part of america is responsibility dealing with the global threat and the jihadist in a way consistent with our value system because of america it is a product, we don't want to diminish the brands. that being the case, i personally but favor to have

long discussions all, almost a national security court. i like the idea, a due process is part of the brand. guantanamo was the right thing to do initially but the reason it caused much consternation because the rest of the world could not believe america would pick people off the battlefield and leave them there forever and it wasn't consistent with the american brand of due process. my judgment was never about the location but adjudication how do determine if they should be there or they were at the wrong place for the wrong time or wrong forever? both have occurred. how do you adjudicate? at the end of the day we have to look at a national security coalition perhaps

presidentially appointed with a three court panel and have them deal with the fisa applications and habeas corpus and counsel, rules of evidence, transparency is essentially important and render a verdict and move on. that is what we should do with the terrorists. i have a tough time consuming criminals ladies and gentlemen, the biosite have by prosecuted and defended criminals. i never met anybody who was willing to blow themselves up to achieve their goal. that does not quite fit in with the asymmetric bid made and the tactics are different but rules of evidence have to be different they cannot be quite as transparent as long as everybody knows

them, representation rules of evidence and adjudication and to move on. >> of recapture bin laden today, do we read him his rights? >> no. we throw him in jail and give him a lawyer and move on. he has the right to counsel. and will be heard in front of the independent group with the rules of evidence will be different than in a criminal court. some of these prosecutions maybe easier than others but you still have to protect your resources i have to believe rules of evidence will be different and the military tribunal still make it because they were established during the course of the war with a quick resolution of the enemy, and to do with them at the time. they are not a fit this time

either. >> good to see you again governor. you mentioned safer stronger better the department of romance security building this a for stronger better america. since we have talked about infrastructure, rearview mirror created policy, whether or not you believe we have the proper balance between national preparedness, and fizzle out -- physical security measures? >> the parts of homeland security that was embedded embedded, with a terrorist attack, oil spill, not

necessarily oil spill. that is different but fema. candidly, i am not privy to the work they're doing in the area. but the broader responsibility, the question is, are we giving them the resources? and more importantly the state and local government to build that to prepare the infrastructure. a couple of things. we add county and state government to get together to help us design the operations plan down at the county level. if you get the disaster center everybody operates who will be there? what ourol plan that was never given a good chance that katrina designed to put in place but even in those

instances, you have to be mindful people are subject to change and modification and alteration based on your relationship back to the local first responders of the apparatus exist with the mindset, i don't know but to help preparedness if they have the broadband public safety network. i for one argue for the math to be involved provide health to rewrite the law creating the in the with a bunch of trade rose jumping around my district so you just have to make sure the relationship they have with the locals, my answer is long winded and i am sorry but i thought homeland security was a big monolithic structure in

washington but then break it down i thought regions would be helpful. we have the integration team of people from all of the agency's to break it down with eight regions dennis -- united states build on the traditional missions of other agencies coast guard had separate mission and fbi then embedded with only a security. it made sense and for me it meant the rubber was in charge you would have the relationship with the governor, the mayor, big city police chief and helped to oversee the training exercises come and help allocate fellow integrated network. >> it is still sitting on the shelf. >> if you have to reach an four or five years before

katrina, home as security director had a relationship with the mayor and two or three governors involved, overseen the training exercises, you could not have kept some of these from breaking but i think the outcome still would have been dramatic but it have been in a better position of the federal-state local government were working together before it occurred. >> let me second that we spent six months writing a very lengthy report i am not sure anybody read. [laughter] >> i did. like the health care bill. i read it. [laughter] >> building on that at the wing young men and women died and that is why we have the need. >> their response plan we had under the circumstances circumstances, all cabinet members signed off so that

is something was so dramatic get overwhelmed state and local like katrina, this individual could call on the resources of everybody to respond as quickly as possible. >> we have time for a couple more questions. >> i am with touchstone consulting group. are you surprised the aviation supply chain is a preferred target? obviously b.c. rail but does it surprise you that mood 10 years after 9/11 is the preferred choice? just curious on your thoughts. >> it is not a surprise. it is a theme and at that has recurred in my almost four years there

periodically. one of the reasons because it on seoul's the entire world because of how we live in the 21st century and affects commerce and a major way and what 9/11 did to the commercial aviation industry as they understand fully it is another incident involving a commercial airliner whether passenger or not what have huge economic repercussions that would dramatically disrupt economic activity around the world. >> as pan am 103 did at the time. >> good morning governor.

james reed. you were in fortunate to experience the political aspect of american security by serving in congress as well as the management perspective and mentioned the red tape involved with many subcommittees in congress. how do suggest to strengthen the links between the branches of government and security? >> wonderful question. wonderful question. we have been reminded from time to time of the ongoing threat because of incidents and anecdotes powerful reminders.

i think in time hopefully the political leadership of both parties will have these public discussions in a way to help americans understand the long-term nature of the threat. we should not be breathless about it. it is not a country that lives in fear. we should remind ourselves that when we lived under a different norm as then the cold war we had thousands of missiles pointed at the soviet union, a committed the resources to dealing with the threat to and the professionals and underneath a nuclear umbrella the challenge for the foreseeable future not to be

with our value system but to do it in a way to keep the public engaged and defenders to pick out the times square the bomb did not go off 31 the passenger to explain these are the anecdotes to read about and going about in a very methodical way to become a part of the dialogue. but it does not hurt to have a discussion to make ourselves safer and more secure. part of the dialogue which it has not been for a long time. so that is a great way of doing it. it is a fact of life. >> we have time for another. >> good morning.

the freedom of speech that america enjoys three now have the internet and the information out there. the terrorists use at as secure communications like second life and world of for kraft what should we do? >> is difficult to secure the internet but we have also discovered they have a public messaging campaign and a narrative that is much more appealing to the radicals in the use of the internet and social not working to undermine their ideology. idea of the internet as one of the tools obviously we exploit every chance we get but it is beginning to the bronx the belief system but we get another battle about

nomenclature but terrorism is a tactic used for millennia, thousands of years and our job is not to have the muslim world that the would embrace democracy as we know it the first job is to undermine what ideology stands for. >> al qaeda elevates the murder bombers. do you know, where the marchers are common the men and women and children that killed at weddings and funerals and bazaars and mosques. we have to use these communications tools to define the broader muslim

world there's nothing in their ideology that suggests that a muslim will enjoy a better life better education , and stop transformative in human terms of we use the internet as a couple of devices to undermine before they could embrace the notion of how we live, we have to demonstrate that what the extremist want you do is inconsistent not only with their religious believes that want to live their lives with their children and the old "politico" average that we really have not addressed

ideological issues and again exposing and attacking to help facilitate the ideology and its own weight. what it implode as it is not the jihadi web site or the chat room but the hand to hand more it becomes a some point* this ago. we have time for one last question. >> from a homeland security policy institute the structure you talk about but this is what has gotten us where we are today and talented people try to keep america safe but when the president spoke the other day he emphasized the government will ensure americans are safecracker if

you look at europe and other places where terrorism takes place, they don't tell their people back terrorism is the fact of life and you have to live with it and you have to help us prevent it. have we been into a sense of complacency because your government will keep you safe? wineries start a campaign that gets people it is engaged and participating? >> ties into the question about how do we go to the general public? i do think that you highlight a concern i have had for some time. that is accepting the reality. go back to the initial question what keeps you up at night? probably the people in the intelligence community but

this is a reality. it is the new norm and we presume government will do everything they can to keep us a fan presume that after an incident all of the resources of the country will be the best we can focus on the perpetrator or discovering if there are any other packages but that is the assumption. and a pretty good one. it is about the broader discussion to say we don't live in fear we are a resilient century and if it does happen again hopefully we could get the perpetrators but it is something we will deal with so accept it so let's do what countries do all over the world and move on. three are strong enough.

we just have to have our elected officials talk responsibly about the ongoing nature and frankly and this instance the middle east and the u.k. it is a fact of life just accepted for those who try to make us secure let's just allow but let's get more engaged overseas economically and don't forget that the end of the day america's future security and prosperity requires more engagement overseas, not less been i think you on that note please tell me if thinking thinking -- and the thinking the governor. [applause] [inaudible conversations]

and [inaudible conversations] [inaudible conversations]

[inaudible conversations] [inaudible conversations]

and i am sure we will continue to take to reduce the risk at the end of the day to get the perpetrators before they strike. offense, perpetrators, a defense and that combination of both and we will continue to walk on -- work on an perpetuity i am afraid. >> [inaudible] >> i will all leave that decision to the president and the state department's as they are in charge part of the bottom-line that is a difficult decision any administration has to make but the source of terror of the source of the threat to your troops, the source of

training in is in another country come reversed need to get the collaboration and cooperation of those countries. if it is not forthcoming and threats continue to persist, then you have the challenge whether to take bilateral action with the military and diplomatic members of the president's team. pakistan is a great ally and have done a lot but in certain areas on the border, with good drones it has created problems and externally and internally but at the end of the day it is about trying to be as sensitive as 3k and. there has been the elevated amount of strikes but there

are things behind the scenes with discussions. >> how does all this security work against that? >> then democracy within homeland security is the right agency to be integrated. one of the concerns that i have is we have built into the information process, a huge infrastructure and sometimes i wonder instead of people acting on information end, it appears to be actionable from they did go but then let somebody else decide. have to be careful not to substitute process for our judgment. one final question. >> of the security plan release a bit on draw line between all men security, great britain.

should we be moving in that direction given the international implications? >> i would love to answer the question once i see the report. it is interesting it has not been a point* of contention here in the united states. but a reason for more traditional phone time to time to be integrated into home and security protocols. using north, to talk about maritime, working with the coast guard to determine maritime responsibility and dhs with capabilities that there are certain incidents require military assets within the country. whether or not they are viewed as one i don't know. having not read the report but since then 11 there has been times and locations and resents for the military to

be integrated at certain times with homeland security. thank you very much. [inaudible conversations]

weiss. we have been involved in a number of national security

issues together. he came to the private sector as a trial lawyer and defense attorney after 20 years in the government, 18 years in the southern district of new york, holding every position possible, and after the eastern district of virginia, the most prestigious attorney's office in the united states. it is one heck of an office, and he was there for 18 years, out of about six or seven different u.s. attorneys during his tenure and handled some of the highest profile cases in that office. then he worked at the department of treasury here in washington. he happens to have a wife who is a terrific reporter for "the washington post," laura bowman felt -- laura -- he knows the issue firsthand. he oversaw close to 500 lawyers in different divisions of the homeland security department. so he has lots of knowledge

from different perspectives, and i'm happy to introduce my fellow weiss., briaruch >> thank you all. i think we are going to have an interesting panel this afternoon, as interesting as 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 you, lucy. in your view, as a journalist and a lawyer, under the first amendment, and a journalist ever be criminally prosecuted for reporting classified information disclosed to him by a government official? >> first of all, i cannot think of any situation in my lifetime

where i think that such a thing has occurred. but, just as in my lifetime there was a situation i never would have thought of where a president of the united states was ousted for criminal behavior, i suppose there is possibly some situation where a reporter could be treated like any other citizen and charged with such a crime. i cannot for the life of me imagine what that would be. >> ok. so we have the idea then that the first amendment, absent the unimaginable margin, protects a reporter who publishes classified information. now, that is certainly not the view that was articulated by the justice department prosecutors in our a pack espionage -- in our aipac of espionage case.

the clients were charged with having discussions with government officials, having listened as the government officials shared with them information that was classified, and then repeating it. we raised -- there were charged with having done so under the indictment, although we were going to dispute that, knowing that the information was classified. and one of the issues that we raised, of course, was the first amendment. we suggested to the judge that the first and then it was an absolute protection, absolute protection at least under the circumstances. the government took a very different view, and i am going to start picking on ken in a moment when it comes to the government. what they articulated, the prosecutors in our case articulated, was the disclosure of classified information is not properly thought of as protected speech. it is a criminal act. although it manifest itself in

speech, it's like saying, "lets go sell heroin or go and commit a murder." it is speech that can decriminalize. so therefore the first amendment plays no role in the case. because the information was classified, the first amendment goes out the window. now i want to turn to ken and say, thoughts? >> i do not think you need to get to that absolutist position whether the first amendment applies or not. the espionage statutes definitely have their flaws, and we will talk about that more later on. but they have been subject to first amendment law is. so i do not know you need to go to that point in order to -- are you against a reporter or person in the position of aipac in

order to defend against a constitutional attack on the case. >> a judge denied a motion on first amendment grounds. on the other hand, he rejected the government house position that the first amendment was in applicable. the judge cut this down the middle, and he said the first amendment does apply, but contrary to misperception, the protections are not absolute. there are circumstances, if the government proves a relevant fact, that even though the first amendment protects, if the contact -- if the speech was so egregious, so harmful, coupled with other elements we will discuss any moment, the prosecution would still be viable he said difficult but viable. he did not dismiss the case. we'll talk more about the decision in a moment as we catalog the many factors that create obstacles in the way of

prosecuting a weak case. so we have now talked about the over-classification problem, we have talked about the first amendment. we have touched upon it. that is a discussion which can have for a month. the first amendment, two absolute views were the judge comes somewhere down in the middle. we need to talk about the statutes that you have been hearing about, this espionage act of 1917. it is a world war onei statute, not drafted with all of the first amendment in mind. to ken,t i turned t where in his role as attorney general was responsible for

this. i will ask him to read the statute to you. i do not for a minute suggest that you should understand it, but i just want you to listen for a moment, and even as a non- lawyer, you begin to see why the lawyers will have a field day when a case is brought before a judge under this statute. >> i am going to read one section of the main espionage statute. this is one of i think eight or nine different sections. it is subsection e. "whoever having access or control of any code book, sketched photographic negative, the plants, or no relating to national defense or information relating to the national defence, which information is in the possessor has reason to believe could be used to injury of the united states or to the advantage of any foreign nation, willfully attempts to

communicate, and our cause to be delivered or transmitted to the same to any person not entitled to receive it or willfully fails to -- has committed a crime." >> now that has to be simple enough for the ordinary person to conform his or her conduct with it. so contrast that with, say, the simplicity of "thou shalt not kill," for example. there is a complexity to the statute which has given rise to an enormous amount of litigation as to what it is that the government must prove beyond a reasonable doubt before it can actually convict somebody. a few things to note -- it does not distinguish between journalists to non-journalists. it does not distinguished between government officials and non-government officials, although it distinguishes between those who are authorized to have the information and those who are not authorized to

have the information. so in interpreting this statute, in the salomonic way that he did, the judge said let me tell you what the government has to prove. they have to prove that the information was national defense information. that means it was potentially damaging to national security, the judge said, and was closely held by the government. potentially damaging and closely held. plus, the government has to prove that the defendant knew it was potentially damaging and that it was closely held by the government. the government has to prove that the information was classified. the government has to prove that the defendant knew that it was classified. the government has to prove that the defendant knew he was not authorized to receive it. the government has to prove that if the defendant -- the

government has to prove that the defendant was not acting out of "salutary motives," the judge said. even if you violated the law but you think it is for the greater good, that is a defense under this statute. you know, the government can prove all of that, i am not going to dismiss this case. the government will have to prove all that at trial, and if the government succeeds, these defendants will be fairly convicted. so i think now you can understand yet another challenge that faces the government in prosecuting these sorts of cases, given his opinion as a district court judge, if that opinion becomes law and becomes widely adopted, you have essentially another set of challenges that confront the prosecutors as they think about bringing these cases. i want to focus on another factor, and i am going back and

picking on bill leonard again with the question. that is, you have heard that in government officials, when they talk to folks, state department folks have to interact, white house folks interacting with folks out there, they do so after having read a host of classified documents. do they get, in your experience, generated for him or for her, a non-classified set of talking points each time he gets a reporter pasquale? or does he somehow -- a ?eporter's call >> it is clearly the latter. in fact, i refer to no less an expert and former vice-president

cheney on this issue. if you take a look at the statement he gave to the fbi in conjunction with skimpy -- >> scooter liddy. -- scooter libby. >> i'm sorry. he was quite open about the information that he routinely disclosed to reporters would be very similar to information that would appear in intelligence reports, and in that particular case it was in national intelligence estimate. he indicated he would purely allow those classified documents to inform his decisions and in for his conversation. as we heard from general hayden at lunchtime, what is often the issue is not the content, it is the thought. as long as an individual is

careful not to disclose what is known as thoughts -- it is the source. as long as an individual is careful not to disclose what is known as the source of information -- >> let me interrupt and hand you which, as a lawyer, i have to say is exhibit a, ask you if you recognize the exhibit. >> yes, this is mr. cheney's statement that i was just referring to. >> and the special prosecutor there. you may want to read a few sentences in that paragraph where the vice-president talks about how he relates to the public and discloses information publicly based on the classified documents that he reads. why don't you read a little bit of that. these are -- what bill is reading from is a document of an fbi agents who has transcribed or taking careful notes of the interview that the prosecutor,

pat fitzgerald, conducted of the vice-president. >> "with respect to the information contained, the vice president advised it is possible to talk about something contained in the classified document without violating the law regarding declassification. the vice-president made numerous examples based on in some cases tractive reading classified information, including the national and intelligence estimate. he did not violate any relevant laws or rules in making the statements because he did not reveal the continental sources or methods involved in gathering the classified information." >> so, what that illustrates the and i think is another challenge as we are cataloging the challenges in bringing these cases. especially when you have an oral disclosure, the mere fact that a sentence of third by a sentence uttered by a government official

is traced back to a classified document does not end the inquiry. you don't necessarily know whether or not the person has disclosed classified information. let me put this another way with one more question to build. even in a properly classified document, bill, is all the information in the document going to be classified necessary? >> absolutely not. one of the requirements is that the classification, going down to a portion of a paragraph or sub paragraph, even within that sub paragraph, there will be information that in fact is unclassified. in fact, in the aipac case, one of the many things i was chagrined at was that one of the things that the defendants were charged with, if you look at the source document, the lead in, even though it had classification markings to it, indicated according to sources.

right in the document itself, it was saying -- >> so it was a classified paragraph that was marked secret, but the first sentence red, "according to open sources ." >> that is a classic example of how that to be the case. >> ok, so then let us now talk about a little bit about -- we have this complicated statute, all of these obstacles to using the statutes. lucie, do we need any legislative fixes at all here, in your view, whether it is the statute, the reporters, some sort of reporter's shield law? let's start legislatively.

>> based on the experiences i have had for the past years, with the shield law, the further you can stay away from congress, the best you -- the better you are. i would hate to go to congress and mess around with the espionage statute, because i fear what we would end up with. that said, we have been having a very long, what had appeared to be productive experience trying to get the shield law out of the congress, and we really thought we were going to get something this year. it is not completely dead, but the clock is ticking, and i really believe that a federal shield law is absolutely essential to providing information to the public. and the versions that have survived the house of representatives and the senate judiciary committee have broad, broad, broad protection for

national security information. and for the life of me, i cannot figure out why this thing has been stalled. >> let me ask you about the shield law because reporters are callable in two ways. one is if they publish information -- are vulnerable in two ways. the run at least some risk that they will be -- although as i think you indicated, it has not happened yet -- we have lobbyists but not reported. the other issue is not reporters who are reporting classified information, but reporters who are subpoenaed for sources' where they are not the subject or target of the information, but they have information relevant to somebody else -- tell us about the shield law and how it relates to those two categories. >> when a reporter gets subpoenaed, it is almost always because the reporter is holding information that is believed to be relevant to an ongoing investigation, either by a

federal prosecutor or by someone who is trying to pursue civil litigation. most of the time in recent years, it has been a former disgruntled federal employee who is trying to sue their the reporter gets brought into it and i want to know what the subject -- or who the source of that information was and sometimes the reporter has been given the ability by the source to reveal the information, sometimes the source comes for themselves and sometimes the sources say you may not reveal my identity. reporters always thought for many, many years that they had first amendment protection for that part of those of you who are lawyers know that in 1972 there is a case where the united states supreme court said this

is kind of interesting but it is a close call. we will not give you constitutional protection but you want to go to congress and the state to get statutory protection, be our guest over the years, we have had more than 100 shield laws introduced in congress. at the center out, we have a shield laws are other types of protection by court rule or common law in all but one state, that one state is wyoming where apparently nobody really bothers to go after reporters so it has never been an issue. what ever. >> the fact that is cheney's home state -- >> i don't know. after the bush administration came in, one thing that i think happens with excessive secrecy is that eventually excess of secrecy leads to more government officials and employees leaking information because they see themselves as close eye-whistle

blowers. that is the only way they can get the information out. they give it to the media. they need confidentiality. a very logical result of the incredible secrecy we saw after 9/11 was this increase in subpoenas of reporters on the federal level. we have been able to demonstrate this. we went to congress. we are caught in the is a very ng -- it is just caught in committee. you cannot get anything for the united states senate these days unless you got far more than 60 votes because you need to vote on whether to have a vote. that is the situation we are in now. we know we have more than 70 votes for the bill if it actually goes through or comes to a we are hung up there.

we have delays for two reasons. there were concerns that the national could -- national- security exception did not go far enough. everybody agrees that national security information is off the table if you are a reporter and you are protecting some unruly passions according information, you'll just have to go to jail. that is the way it is if you want to protect a particular source. then we were making a fairly decent progress over the summer having lots of good meetings and we had wikileaks i that caused many people in congress -- it sucked all the air out of the room. they were working on amendments that set in case the national security exception is not clear enough, we will add this additional prong that says if anybody else out there who don't data over the internet, they are

not covered either. i think we're basically running out of time. >> mike, i wanted to ask you whether you are -- in your work if you are reporting the fear of prosecuting for disclosing, the fear of a subpoena, do you think that has affected you in terms of the reporting you have done? are there things you have not reported because you thought it might lead to your prosecution or the prosecution of your source? have you been deterred or acted differently in any way because of the threat of prosecution out there? >> no, i do what i think my job -- what i perceive my job to be. i don't worry about it. clearly, on some stories, you are aware that you could be scared into an area that could have legal implications and you tend to be very careful about how you handle that and try to

avoid being in a situation where it is going to per and. what i withhold information that i thought was in the public interest and that the public needed to know about because some prosecutor at the justice department might take a different view? no, it might affect the way i reported it. by the way, as a backdrop, every time you are reporting in this area, if a government official tells you if you report that it could harm the national security, you have a serious conversation about it. it is never something you blithely just brush aside for an >> is the concern for national security or your own neck? >> if someone tells you something that you are right -- it is not just a national security issue, it could be a

public safety issue our law enforcement. somebody tells you that it will endanger somebody go or put somebody at risk or harm somebody, you take that seriously. you are a human being and that is not what we are in the business to do is to harm people. many, many times i will lippold information on that score, not because it has national security information's but if someone says you put that person's name in, they will face repercussions or their life could be in danger or their family could have problems. that happens all the time. it is not because of the law. it is because you are a human being. we are not in the business to harm people. this is to educate the public. if i could go back to the shield

law -- i should point out that as lucy did, when i last looked at it, the national security acceptance were so broad as to make it absolutely meaningless in this area. there is no -- that law will not do anything to protect reporters reporting on national security cases. anybody who thinks that it does is kidding themselves. it will not knowledgeable law one bit in that area. -- it will not nudge below one bit in that area. the biggest threat to reporters is in the civil a rim. -- i read that. there has been some really bad rulings in the district. that gives license to litigants to subpoena reporters to identify their sources and help them advance a lawsuit, a

privacy act lawsuit. you're not -- they are not suing the reporter but they want the reporter's information to help them make their case. unfortunately, the court of appeals in the district of columbia has upheld that. i have had some unpleasant experiences as a result of that. i think that is really where the threat to reporters' ability to do their jobs is. judges have ruled that litigants can get access to our sources are. i think that is a bad thing. it is nothing to do with national security. it has to do with a litigant trying to advance his case. >> let's step back and go back to our growing catalog of the difficulties faced in prosecuting a classified information disclosure case. let's turn to a new topic, the

classified information procedures act. let me turn to ken. this statute ties in with the concept of gray mail. tell us what that is. what challenges does it present today and the prosecution of cases? >> the classified information procedures act is known as cipa and it grew out of gray mail which is a term that was, by prosecutors and it was defense attorneys representing people in national security cases like sci a person that disclose classified information. that person is being prosecuted. the defense attorney in the discovery process demand

information from the government saying that this information is relevant for persons -- purposes of discovery. much of it would be classified. you had the government in a dilemma as to whether to go ahead and prosecute this guy who leaked the information and make an example of him, but if we do that we will disclose more classified information because this defense attorney has convince this judge that this is information they need to proceed with the case. what congress did is they came up with cipa and it is an overlay on the criminal justice process is says that if there is classified information packets implicated in a criminal case, there is a process by which the drugs, the prosecutor, and the defense attorney can litigate the admissibility of the classified information and do so in the wake that the letter k -- do so in a way that is not going to harm the case.

you have to lump of the information together. if you want to go forward with the case, you'll have to accept that. the judge's concern to the prosecution and asked if they accept that. if you don't, you have the right to dismiss the case. it might not be worth it to release the informationcipa has worked fairly well in practice. it was an attempted to allow this to be litigated in a way that you did not hammer to classified information. it is still not foolproof. you have cipa so why are you worried about bringing national security cases. some cases will not be brought to us for that reason. there is still the defendant often gets exposure to the classified information in the litigation process and also it

is used where there is a constitutional right to open the program very judges are reluctant to close a courtroom to shield discussions about classified information them u. >>." we employed a process you called gray male and it was interesting. i blame the bill for teaching enough about classified information and how it works that enabled us to do it. in our case and many other cases, the disclosures were all oral. in order to prove that the oral disclosures or discloses a class of automation, the prosecutors gave us the pretrial discovery with traffic -- classified and permission from the government which had the same information that our clients had discussed contained in the classified

documents. they wanted to reject everything out except for the warner to matching lines and say they -- they wanted to be able to say to the jury that the reason that you know that this conversation was classified is because we will now show you a classified document. the same information appears that they would reject everything else out. it appears in a paragraph that has a s for sequence. we argued based on the lessons i got from bill, we pleaded to the judge that not every sentence in a bill marked secret is not necessarily classified. the fact that matches a sentence in a paragraph mark secret is a stark but maybe that is one of the on classified sentence says. if you look four lines down, one of the sentences that the asvernment wants to rejedact

the source for the submission. this information came from a bug that was planted in the ayatollah's beard without his knowledge or something equally amazing. i made that up. i would then say to the judge, how can they prove that the information is classified because it matches sentence number one. that paragraph may have been classified because of the bug in the beard paragraph -- sentence. we could show the jury sentenced number 5 because the jurors may conclude and believe was that the matching sentence was not classified, it was the other sentence. the prosecutor said it was called gray mail. they are trying to bring in classified information that is not an issue. you want to use the document to prove this day and was classified. we are entitled to the bug in

the beard statement as well. the cipa statute helps of this issue but it does not eliminate it. it moves into a priest of stayed 2 before the judge. -- a move into a pre-trial stage to before the judge. the cipa process is another challenge, shall we say, to the prosecution as a contumely -- contemplates bringing one of these and the great male issue is one. the prosecution has to realize that there is at least a possibility that the defense attorneys will be able to persuade the judge that they need more classified information that has never been an issue until then to prove their defense case. ok, i think this is a good time to take questions from the

audience with the caveat that we have not listed all the challenges to prosecuting classified information. it would have taken -- it would not have taken us three or four years to prosecute apac case. we have two microphones and if anybody has a question -- mr. rosen, please,. ,. come up. >> i was one of the defendants in a apac case. it was pointed out that the costs of the defense attorneys in the apac case was $12 million. the prosecutors were able to force our employer to dismiss us and to seize the payment of our attorneys fees.

we later on thankfully were able to force them nonetheless to pay a bargained down number on the attorneys' fees. >> significantly barreded down. >> our attorneys were willing to continue defending us for roughly two years by -- while not being paid a ball and running the meter. i wonder whether such powerful institutions such as the newspapers could face a prosecution that cost $12 million or $20 million tax i wonder if the board of directors in today's economics of the media would tolerate such a thing. i wonder whether they could not find some other victim who would be forced to plead out because they did not have the advantages that we had. i know you questions but my final comment is that a high percentage of these costs were imposed by cipa.

it cost so much primarily because four years of hearings for the cipa process. we never got to a trial. the case was dismissed before trial in our case. as i understand it, the majority of the fees that were run up or run up because of the meeting the requirements of the classified information protection act to. . >> since you said nice things about the attorneys, you'll get a pass. the reason the cipa proceedings to so long as those -- is because we had a conscientious judge. it was a lot of allegedly classified information at issue. he went through it line by line. why do we need this sentence? why do need that word? what damage will there be to the government if it is disclosed? what role will display and the defense?

he was very conscientious about it. he did not get paid any more or less for doing this but in terms of the fees, it drove up the fees quite astronomically. i would put that as an impediment on the defense side. the resources required to defend these cases are quite enormous. >> it seems to me that cipa is not only problem for the government. as i recall from the morison case, the defense necessarily get access to all the classified information the government is trying to keep out. i would like to hear some discussion of that. >> i am happy to respond to that or deferred ken. >> that is the purpose cipa, to draw the line between those materials that might be classified that the defense and the defendant should have access

to and they might be then be able to put on in open trial and those materials which the defense should not have access to. go back to the origin of cipa. it was the practice gray mail but the point was that the defense will ask for a large volume of materials much of which is classified. the more material it is, the government is more likely to say no. where along that spectrum is the line between what is relevant to the defense, possibly exculpatory, that the defense has to have and what is that the defense is not constitutionally required to have to put on a defense? >> once you get to a trial under cipa, the government gets to use all this secret stuff that the defense cannot say. is that correct? >> what happened to cipa, when

there is information that is arguably relevant, the government has a few choices. sometimes there is one section that allows the government if it thinks it might be relevant but probably isn't to go to the judge and show it to him but not to us. bacon's a to the judge that we want to be good citizens and weak -- they can beat a good citizens and they are telling the judge this. the judge might turn to the defense and say is -- he is entertaining the information. he may not show it yet but tell me your defense of what you want to do. i will look at the documents and see if you should get them. that is the first that. then there are documents that the defense gets which are clearly irrelevant by cannot show their clients. we, the lawyers, got a lot of stuff that we could not share with our clients.

it is odd representing your client or the most important information you can't talk to him about we would say, by the way, i spent the last three months to keep this information out of the case. what information? i can't tell you. thank you very much. it was that sort of discussion. >> the $12 million figure kind of struck me. i imagine that some additional multiple millions were spent by the government to bring that case. when that amount of resources and energy goes into bringing a case that collapses, is there a price to be paid in the justice department for the people who brought the case to begin with or at least a reevaluation goes on? i wonder if there is, do you think that the current just a part is keeping that in mind in

this current extraordinary state of a week prosecutions they have brought in the last few months? >> very good question. >> let me parse that out. you see a number of lead prosecutions. i just know about what i read in the newspapers. they are not recorders. they're not the recipients of the information. the government has made the assessment that this was important information. it was irresponsibly disclosed. we need to make an example of people who are doing this because we are hemorrhaging classified information i can go through chapter and verse of examples of things i know that were released while i was in government because people just want to talk about things. it drove me crazy. it was compromising sources and methods. i am sympathetic to the new administration and what they're doing in this area. >> to your question about what

happens in a case like this when it collapses, i don't know. i was there for one sort of spend of the case. i was not there from beginning to end. you can tell by our discussions c aboutipa that these are complex cases. the decision to bring a case like this is based upon prediction. you are predicting what a judge will do down the road. i am sure when they start -- decided to charge the case come the cipa portion would be hotly contested. you know you'll be up against very able counsel and you are predicting that you think you can prosecute the case. when an agency, to us and says there is information that was disclosed, one thing they want to know is do you think it will compromise further information?

if so, we don't want you to go forward. we have to predict to them whether we will getcipa rulings in our favor. i am sure that process was done the ruling that came out in this case did not play out with that prediction. >> which does not mean that anybody was irresponsible or irrational in the decision making. it might mean that the ultimate decision by the judge did not track with what people expected them. q uuoted judgeellis and one of the standards was that the government had to prove that the disclosure was not done for a salutary effect. it would not cover a whistleblower who thought he was doing the public some good. >> the most prominent case that this justice department brought is it seems he was exactly that.

he was trying to get information out about an nsa program that was costing too much money and that was his primary motive. if the standards that judgeellis set is the standard that the government go by -- >> he was not being charged with espionage. he was charged with mishandling. >> for not returning it. >> that is not the only charge. >> there are a few things. decision is not binding but he was the first one to articulate this. apa all thec espionage case, most of the instances were a government official. when you get a classified document, you'll have already signed up for the classification process for you have undertaken nondisclosure. you have waived your first

amendment rights. for the privilege of serving the public and for getting classified information, you have a heightened responsibility. when you prosecute somebody who is a government official who has not -- who has promised not to disclose government information, the standards are not the same that would apply to the non- government official who received it. this case called uponjudge ellis, it was the first time what standard should apply when it is a non-government official and whether that would apply to these folks are governed officials and whether his opinion will go beyond the eastern district of virginia where he decided. these are open issues. the justice department is entitled to fight to that. >> but if that were the role

that so long as you are doing this not to help the enemy or not to enter the united states but because you think it is in the interest of the united states, that means that every governmental employee has the discretion to decide what is best for the united states. i cannot say classification system working based on how many millions of federal employes think of what's good for the country. >> the starting premise is that the classification system is not working and that is where we started from there is much over- classification. that is your reason for bringing these cases. >> jeff and i testified on the hill about this very issue about government and police, particularly -- government

employees particularly the ones with good intentions and how do you prosecute cases and make it clear that people can't willy- nilly disclose information that is classified by deal with the real whistleblower. the upshot is that you need to have effected whistleblower protection. you need to have whistleblower procedures. if i am an employee and the intelligence community and i see something that is problematic. i don't call my friend in the press and drove out there. i go up the chain or i will be protected by doing a great it gets to somebody to look into it and take action whether that's a i theyg or the intelligence community. there are several different whistleblower divisions. that is probably your answer if you want a system where people can blow the whistle on misconduct but not have full

unfettered discretion to disclose secrets to the press that the answer is even simpler than that. >> as we saw in the panel this morning ch on theeney quote, information is the coin of the realm in this town. when i was back in the pentagon, one of the things i had responsibility for was the counterintelligence programs. in terms of addressing a the le imagingaks, one thing i wanted to do is to set up a training program for senior level people, people who are not used to dealing with intelligence products or maybe they come from think tanks. i wanted to give the d mkesk- side training. when you need to deal with the media and think tanks and other governments, here is how you do it. this is how you'd do what cheney

says you do. when i did that, i was ridiculed within the pentagon. the analogy i can up with is when people want to give condoms to teenagers to prevent unwanted pregnancies -- people said that that i wanted to encourage a leaks by giving this training. one thing i was left with in theapac case, if the government had devoted a fraction of the resources in terms of educating the senior policy makers of how to conduct everyday business without damaging national security or disclosing sources, that would have addressed a big part of the problem. to this day, i don't think that ahas happened to. .> = >> can you imagine any circumstances under which journalists could be prosecuted for violating the as the not

statutes n usedo said and you could not recall before your lifetime, in 1942, the chicago tribune revealed the fact that the united states was breaking the japanese code. the japanese have taken notice of that and changed their code, could there have been a viable prosecution? >> no, >> why not? it was a disclosing the cost the lives of thousands of american soldiers and prolonged the war, it makes as forfeit our valuable window into japanese military movement -- >> i can't think of one. that particular thing did not happen. it was largely because of the context back then. information like that was probably not going to make it to the japanese.

is that potentially may be something -- i don't know? . i would be comfortable defending of the chicago tribune for doing that. as an editor, what i've done that? that would have been a bone headed thing to do. none of the journalists i have been dealing with in my professional 35-year career would do something that moronic. i am not an ethicist. i am a lawyer. [laughter] but there is a code of ethics that the society of professional journalists has out there and it is the most common code of ethics out there. number one, speak the truth. hold important people, those in power accountable and also in general minimize harm. in my experience, everybody who

is a trained professional journalist out there working particularly in this town is going to adhere to those principles% that is really why can't imagine that situation happening right now. >> under el judgelis' interpreted -- under judge ellis' interpretation, he made clear and the prosecutors agreed that there was no difference between our clients lobbyists and the press. both enjoyed first amendment protection of equal strength. therefore, i am comfortable saying that the standards he applied in our case he would applied in a case against the press. that case would have satisfied that this was potentially damaging and they knew it. there is not a saltatory motive. it would have gone to trial.

the government would have had the opportunity to prove that to a jury. >> everybody thumps the table as to the danger is that results from the release of classified information. in my experience, inevitably, they are exaggerated. look at wikileaks in the last few weeks. all the harm that the pentagon originally said would come from the afghan war league sent secretary gates last week wrote a letter saying that actually, they have not been able to identify any harm coming from that league. k. what government tends not to talk about is the real danger that results from over- classification. i could go on and on starting with the 9/11 attacks and how excessive secrecy within the government led to the

restriction of information that had been passed along might well have been able to stop the information that the cia had. because they held it so tightly, they would not share with the fbi and that could lead to the identity of two of the hijackers who were in the united states. there are multiple examples of where over-classification, over- secrecy results in real harm to the national security that tends to get left out of -- it is not just an impediment to the prosecution's case. it has ramifications far beyond that. >> the other question? r.s, sir pare >> this is one that meets the criteria of today's discussion which is the nexus of national security and criminal law and

first amendment which is not in the same mode we have been talking about but i think is still relevant. recently there was a threat and burning ko of theran which could be -- burning of the koran. i question the media and the lawyers preses. from the preachers point of view, if they was going to go ahead with this act and he was positive there is a definite cause and effect and it would have resulted in harm to soldiers, would this be deemed free speech and protected like flag-burning or might it be more akin to non-protected free speech as in yelling fire at a crowded theater? for the media, the question

arose as to the responsibility aspect of covering this. store you certainly have a right to cover it and you had mentioned the ethics of it and minimizing harm and so forth. covering the story versus what i will call the professional or social or moral responsibility akin to covering it. thank you. >> why don't we start with ourpress folks in terms of covering that kind of story. >> i thought the coverage of that guy was way excessive. i would object to any restriction put on the coverage of it. on the other hand, that does not mean that we have to cover the way we did. it was offensive speech.

while i was probably the responsibility of the media to take note of what is going on and became a political issue of controversy, that did not obligate us to have the guy on the air every 20 minutes on cable. tv had he gone through with it, i would certainly have minimized coverage as much as possible. ." >> i think he had a right of free speech to do it but i think he was an idiot body had a right to do a bette it. >> and a protest about the military funeral at the church in kansas raises similar issues as well. it is whether they can be prevented from demonstrating a protesting. yes? >> my question is for a w

mr.aynestein. i was wondering if someone should never be prosecuted because they did blow the whistle through proper channels and hypothetically would you ever be able to use those protected disclosures as evidence in a criminal trial against them? >> you are talking about proper channels? i was referring about the whistle blower act. there are several different statutes that say if you are a government employee and you have information in a classified area of that you think needs to get out, you can go through this channel to get it up through the inspector general. >> and those are the channels i am referring to. >> you will not suffer any criminal consequences for taken that up through the channels. if you disclose to the inspector general of the cia that things were happening in a classified

program which are wrong, you will not suffer any consequences from that because you're following hit the statutory mechanism. if it goes to the intelligence committee, it would be the same thing. they are clear. they are entitled to get that information. i am not seeing how you would face the prosecution for disclosing this information under the whistle-blower statute that it would surprise you to find out that among the recent spate of prosecutions that were so quiet late whispering about around here that some of those prosecutions, it would be completely illegitimate if there were based on protected disclosures? i am familiar with the whistle- blower protection act. that is what i do for a living. i wanted to make sure i understood that it would be absolutely improper to basic prosecution unprotected disclosures. >> i am not sure where the criminal violation would be if you follow the prescribed path in the statute.

if you did that but also talked to your friend the reporter over a beer and disclose the same thing, then you have a problem. >> is that a problem under the espionage act? >> sure, possibly under the espionage act. you get into the statutory elements and find out whether it's it's under the act. a reporter who was not part of the whistle blower mechanism is what i am saying. >> i will leave it at that, thanks. >> thank you. ok, well thank you all for attending today. thank you all on the panel. i hope you enjoyed our panel today. i will turn the podium back to john. >> one thing i will do is i want to thank the vanderbilt amendment center and this whole floor and started off with a

short phone call with jill erschel who is a director of thenewseum. those organizations, hats off to them to for bring us here and thank them for this locale and everyone else for participating today. we appreciate it [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

[inaudible conversations] >> good morning. and welcome to those of you here and those of you following us on our live webcast.

this panel on military and the media is a highlight of the event being sponsored by the medill national security initiative. i'm alan shearer director of the medill washington program, which is part of northwestern university. medill has been a bitter national security journalism education since we created our unit covering conflicts and terrorism class in 2003. in 2009, we open the medill national security journalism initiative, which is a long-term effort to help journalists and journalism students gain the knowledge and skills necessary to report accurately and with context on the events and issues related to defense, security and to the liberty. the initiative has four components and receive generous funding from the mccormick foundation and the carnegie

corporation to pursue these endeavors. we have created a sequence of graduate and undergraduate courses in our main campus and out of thin and here in washington for our students. we also are sponsoring an annual symposium in 2011. we've created excellent research fellowships and training for working journalists, which brings us to today's event. i want to thank the museum for kindly allowing us to use this wonderful facility. and now, let's get onto it because we are very excited and a discussion i had. big enough in this discussion is josh meyer, director of education and outreach for the initiative. he joined our initiative in january, coming to us from los angeles times, where he spent 20 years doing investigative reporting in the last 10 years or exclusively covering terrorism and national security. josh come over to you.

>> , alan. first i want to thank all the panelists were coming here. we have bias but she will have, but as a quick introduction i want to give a special thanks to assistant secretary of defense for public affairs, douglas wilson here in the middle, who i believe is the first time you're talking about military and immediate issues like this, so that hopefully would be a very robust and engaging discussion. i want to also thank major general train for, whose accomplishments are many. he's also been enough to get more transparency in the media and is now a senior adviser. major kirk luedeke three people over in uniform. senior president liaison at a forward operating base in iraq and also here at the pentagon. he's much respect it by the media because he is sort of tells it like it is and has been very helpful, also working on social media issues and so

forth. and elisabeth bumiller from "the new york times" who is a special national correspondent covering the pentagon, who started -- that he started the white house beat on september 10, 2001-hertz of things obviously changed a lot a day after that she expected to come according to a bio i read, expected to be more of a domestic policy white house reporter and then of course the next day became -- >> everything changed. >> everything in the world changed. i left l.a. and went to new york next day. you know, i think i wanted to keep my remarks short because even though we have two hours i think we want to hear from the audience and hear you talk. i wanted to touch on a couple issues. you know, this is -- especially good time to have this panel because of the obama administration has been in for some period of time. and even though the secretary of defense's same as it was the

monsters bush administration, there's a lot of new faces in the pentagon and the military. obviously secretary wilson is one of them. and the obama administration has said repeatedly that he wants to inject a lot of transparency into government, in all facets of it, that includes the military. i think the military has been trying to do more of that and getting people to the front lines to report. he's also been trying to do more social media in terms of blocking and facebook and so forth, which is a very complicated subject which i hope we'll touch on today. but you know, there's also -- there's other issues as well that we want to talk about. you know, guantánamo, i know there were for reporters that became a big controversy were allegedly kicked out and then there was sort of a discussion over what happened in a resolution to that, so that is something you want to talk about. i think we want to talk about

the rules of background. despite the administration's efforts to make everything more transparent, there's still an institutional resistance in washington to have people give backgrounders are fully infused, so we can talk about that. that sort of part of the culture i think you guys are working on, but it's still tough. you know, counterinsurgency efforts in afghanistan and iraq. one thing i wanted to do for us to share an update on the tragic story, but women also shows the media relationship in a very positive way. the tragedies of the veteran war shooting for "the new york times" was seriously injured saturday by stepping on a landmine. and if there's any silver lining to the tragedy. injured while in kandahar province. and so, that the show events are occurring and their print reporters to the areas where the fighting is very intense. that case shows that silva was

not only treated very quickly by medics on the ground, but was brought to bagram airfield and then to grandstand air force in germany and ultimately on its way to walter reed medical center. so i'm told that, you know, that high-ranking officials in the pentagon were instrumental in making sure that he got the best medical care. on a broader level, general petraeus, another holder of the bush administration and a career army person, his coin manual describes the need to work with the media, allowing the media to embedded with troops for weeks rather than days so they can better understand the mission. in july, saddam and now stone article on michael hastings, general mcchrystal is being replaced at the pentagon issued new-media guidelines govern the worse for some time, they said basically just make sure the rules were followed and they gotten sort of sloppy overtime and they were just make sure that things were done according to process.

some critics in the media say these new rules are more restrictive, so we want to talk about that later in this panel. under the revised guidelines set by the defense secretary robert gates, top pentagon and military leaders must inform assistant secretary wilson prior to interviews or any other means of media and public engagement with possible national or international implications according to "the new york times" report on that. so as not to talk about whether that's produced a bottleneck or improve things. and i could go on and on. i wrote 10 pages of stuff that always got into questions later. and i think with that, we should just go on. to address the first question? >> i'm asking a question? a >> we are prepared remarks. secretary, would you like to start? >> i'm happy to do it. at first i want to thank alan and you, josh, and the medill center for organizing this and

inviting me and my colleagues here. you do outstanding work and it's a pleasure to be here. your introduction, josh, on a number of issues with which i have had to deal in less than a year i've been in having these departments office of public communications. one of the interesting things that i have found during that time, and i was at the pentagon twice before in the 90's under then secretary colin, is that as i deal with issue after issue, i keep remembering new year's eve 1999. i remember as we look towards the new millennium and the advent of the year 2000, the major issue we were talking about was y2k. and i look back now and i think how the world has changed. in the world has changed, not just in a policy sense, not just in a national security sense, but very much in a communication sense. and one of the things i think

people make a mistake in doing is separating communication from policy. they think that reporters react, that those in government are whacked and that it is in essence kind of a zero-sum kind of relationship, adversarial relationship. when in fact, communication has changed as much or more than any facet of our lives. and it has become integral to the making and implementation of policy and not just to the cover another. it has become a cliché to say that technology has produced tools of communication like the social media and cell phones and skype and others. it's become a cliché is about to say the traditional avenues of media, or traditional print and broadcast media cell phones are losing audience and revenue in this new world. but it's true and i think that

as a result, we have some unintended consequences that is manifested themselves in a number of issues with which i have had to deal. guantánamo. journalist safety in the battlefield, the rolling stone article, wikileaks. and all of these, you know how to deal with outstanding men and women, not just in uniform, but outstanding men and women like elisabeth bumiller who were at the top of their game and terrific professionals who are finding their own pressures and constraints in today's communications environment. you are finding the rise of celebrity and status and a new importance on standing out from the crowd, but in my view gives rise to some sensationalism, some celebrity focus that wasn't there even a decade ago. you have lines blurred between

fact and opinion, between reality and image and even the determination of who is up and who is down. so i think in this discussion, i'm hoping we'll have an opportunity not just to talk about military versus the media, but how the communications environment has changed for all of us and issues that we never thought we'd have to deal with before, were all dealing with often times without guidance or precedent. >> thank you. general, would you like to go? >> sure, i have a tendency to do this in terms of civilians to let terry. and i'll tell you that are four-star generals are at the airbase between policy and military execution. secretary wilson and the men and women in this room, elizabeth

are the interface between civilian and military. you are the conduit very often for commentary. and we can talk about this at any time, but i had a few incidents. greg jaffe of "the wall street journal" embedded with the very young general officer. this was in bosnia. during the course of the embed, jaffe in the back of the humvee is writing his pompano's pocket. greg fontanelle eyes met mr. jaffe, but what fontanelle was saying is what every kernel in every major insurgent danger general agreed with, and that was we were not going to be in bosnia four years. so fontanelle in the course of the discussion with all this out. jaffe had no malice whatsoever, but the system ground them off

because at that level in military and civilian arenas, fontenot was groundouts and the system decided not to make him an officer. then you've got a shift in process, where when i was at port name i get 60 journalists to embedded training and it was fabulous. i loved it. they seem to like it. and we sent these journalists, along with the lead of others to do what mr. rumsfeld called the thousand struts approach to getting america feedback for what was going on on the ground in iraq during the attack. wonderful, wonderful idea and process for the sons and daughters of america who are committed to fighting or communicating back to -- to

their families and societies and communities. then, josh touched on the rolling stone and the crystal event, which pops up a question of civil military relations certainly and then we have the woodward book come out. and again, civil military relations. so i see it less about the military facing about the media, the media as conduit. ml and was two points. there's a difference between retired military and active-duty military. it was in the retired community, there's a difference between those who are paid by networks and those who are not paid by networks. two, when i first came on active duty, i hated general tommy after i'd been issued to oppress things, i did make general by talking to the press.

and roll forward 35 years later in this guide dave petraeus he was a master at using media to communicate. in the change in strategic communications we've seen coming out of afghanistan in the last 2000 years is not an accident. >> kirk. >> i just want to echo everyone's sentiments. i appreciate you having me here. i want to salute those of you, the students out there in the audience better journalists and working toward honing your craft and becoming more skilled in what you do. i think that is an essential career and an essential part of the fabric of our republic. so i salute you. when i was younger, i had two aspirations, be a soldier or a journalist. and you see which way it went.

that being an army public affairs affords me the opportunity to kind of have the best of both worlds. and through my interactions over the last five or so years, and there were so many professor journalists have been a real pleasure to see you the work and that of the general said, >> conduit communication. i believe that soldiers have a very compelling story to tell, soldiers, marines, airmen, but they have a very compelling story to tell. in our country wants to hear those stories. at the same time, my job is not to leave the pom-poms and try to facilitate only positive coverage. i have a duty to the american people to tell it like it is. and i think you'll see, as she is speaking clearly from the army public affairs standpoint, we didn't maybe always do that and we're getting better. still a work in progress is like

everything. we always strive for improvement. i think we've made some good observations on our sister services have operated in the more agile, more tech savvy career field. and we're really attracting some really impressive men and women to the field. and it's been a really rewarding time for me to shift from combat arms and go over and be a part of this -- this career field, which is still very, very and turco to what the combat arms in what our soldiers are doing in terms of accomplishing the mission. so i had those experiences. i'm glad to be here and ready to share with you may be sons helpful tips and guidance to help you facilitate and set conditions for success when you move out into the world and possibly your contacts.

>> thanks, kirk. >> thanks again for having me here a fellow reporter on this panel. i'll talk reflate about the practical implications of all of this, as the day-to-day reality of the pentagon. they see tony here and bring, you guys can speak as well to this. but after i covered the white house for nearly five years and then i covered the bush white house and then i covered the john mccain campaign. i didn't start covering the pentagon until the 2008 cubberley 2009. people have often nasty, what's it like over there? the possible reality is i find the pentagon and in many cases far more open, certainly than the bush white house was in terms of access and getting somebody to answer questions. certainly more than the mccain campaign was, the late days of the mccain campaign. and you know, it's still extraordinary to me you can wander around the pentagon if you have a little building past

come as a reporter, and i can on anybody's office. they got to come to the door talk to, but were free to roam. that's not the case at the white house or the state department. i have found there's certainly an effort as he bought a skirt to reach out to the press and realize there is this opportunity here. general petraeus has seen and demonstrated. and i know there was concern about a number of them that's being counseled around kandahar in the last number of weeks. i've had the opposite experience. i was embedded in may and then in september with the marines at home and na was doing a story on a group of women marines. but to embed with them means you end up with demand because they're mostly men. and i had no issues whatsoever, although i think and does -- i think embeds are an amazing thing to do if you survive them

there, one of the most amazing reporting experience as anyone can have. i find although i think that the troops on the ground, marines, soldiers on the ground are skeptical about the press. these are young men and women, 19, 20, 21 years old. are skeptical and nervous about the press. the perception with "the new york times" is because they know "the new york times." i think that they are -- i think there went over pretty quickly they follow the rules and deal with a lot of the very physical hardship and challenges of an embedded. i always forget -- i forgotten they were imposed, but now i recall that last july, after they were imposed a trade to interview someone -- a fairly senior person.

and it's taken a lot of time to get it approved. at last i heard was with secretary gates still had to prove it. and then nothing ever happened and i got waylaid by other things. i realize now that's probably a result of the new restriction. that said, i've also interviewed people must matter to rest on in the next day nothing has ever come up about it has to be approved. so it's very hard to tell. maybe you and tony and brain can tell about the restrictions. it's hard to tell. it's a big building. it's a big military. in terms of another briefing just last week, and this is endemic in washington. vicious to plague of washington reporters. the pentagon does put an awful lot of background. there's a big reefing in the briefing room, with the senior official and they announced its on background.

they did this must be push back. it was a briefing on don't ask don't tell. and they got a little bit contentious that we were all pushing back. and finally, i raised the question at the end of the night but why is his personal background? if we can name the person, it would give a lot more weight to the pentagon argument. this is an issue with someone who is reviewing all of the legal ups and downs on this and the judges decisions on tomaso tells it was providing -- was trying to provide parity in the pentagon's position on all of this. and i said it would be helpful to everybody here if we knew this person was. and finally chose morel said you can say this person is also a lawyer. i'm mentioned in the story we need a reason why this person is on background. just morel said because that's the way we say it is. so i quoted jackson he got got

upset with me. i just felt it was important to lay down a marker here. because they get a lot of pushback from readers when we do things like that and in the old the near times was not to attend those briefings. i think pushing constantly on this is just as bad at the white house and the justice said that the state department. anyway, those are my comments and i'm happy to answer any questions. >> i think it's across the board covering national security. the fbi and other agencies are like that, too. i want to serve as something basic and broad, which is the new guidelines. officials involved in preparing the had begun long before the effort that led to stanley were leaving, but said the incident to increase the secretary's result to have more discipline to the defense department interactions with the media. secretary gates in fact said quote, i've said many times it must hurt to be open, so slen

transgressed possible. this is in a memo outlining new guidelines. he said the same time i concern the department has grown lax in how we engage with the media, often a contravention of established rules and procedures. and so like i said before, this meant you had to approve a lot of these come at some of the interviews, which makes me wonder if you get any sleep. i mean, i wanted to rescue the process about how this works. before you do so, just morel who is mr. gates' spokesman says in a subsequent interview that the pentagon was not to restrict criticism or free speech whatsoever. he said -- when a reporter said that was probably going to happen, whether intended to or not, morel said it's not going to have been. if we do this right, it should not have been. we should empower people to make wise decisions. i'll were asking for is when somebody rises above one's individual area of responsibility, we eventually get visibility on its beak and be aware, provide insight and perspective and advice. because the reality is somebody speaks to one thing they may not

know about and it could have a ripple effect throughout the rest of her operations, including decisions being made in the national security council or other areas. i paraphrase a little because it went on. but that being said, can you talk about -- >> sure, i don't get much sleep and it doesn't have anything to do with this memo because i agree with elizabeth. i don't know if tony and brand will agree, but this memo has not had any huge discernible effect about how the media works. >> the media is not the enemy. we don't treat the media as the enemy. in fact, we've gone to great lengths to try and reach out when folks in the media have issues that they want us to deal with. journalist safety on the battlefield in guantánamo are just two of those and we can talk about that in a second. but the memorandum proceeded to rolling stone article by several weeks it had been issued. it's a big outing and it takes a

while to get this stuff out. but the purpose was pretty much what jeff has articulated. the rationale was seeing increasing comment on issues like iran, iraq, joint strike fighter, other budget issues. it came from sources where folks from the buildings say in his talk did they get that information? there is a phrase in the pentagon, which i'm sure journalists learn quickly because it's used a lot called situational awareness. in other words, what informs the decision? who has the broadest scope in being able to explain why a decision is being made and that the elements are. the purpose of that particular memo was to say that it was important if you're going to engage with the media that you know of what you speak and then if you're going to engage with the media, that you find out what you don't know.

we in fact have gone to great thing after that memo was issued, not only to make clear to the media that there is no iron curtain falling, but to reach out into the building as far and wide as possible to say, we want people to engage with the media. this is extremely important to our society. ..

>> i have a fantastic team of people, some of whom are here today and they head the office of communication and headed the task force about eight or nine years ago. we have people like that and people like colonel dave lapan who headed our office since 9/11. we have men and women in uniform, political appointees all working together on a daily basis, really 24/7 to deal with the media to make sure people get what they want. out on the battlefield, one of the things we immediate -- we made immediately clear, those

on the battlefield hosting embeds, this has nothing to do with your engagement. they are there because they want to see and hear firsthand what is going on in the battlefield. it's really intended, josh, for those people who really like anonymity better than accountability and we'll get to the point of on the record as opposed to background in a second, but the point we are trying to make is if you're going to give information as an official of the defense department, those who are receiving that information writer and reader deserve to know the full context of it. >> great. anybody want to -- >> what is the reason of the background briefing like last week? what's the rational behind it? it doesn't make any sense. >> let me address that because first i agree with you that with

as many as engagements we have with the press should be on the record. we have no disagreement there. we held a briefing on don't ask, don't tell. it was interesting. i read a story about your colleague and we're aware that many were not impressed with it. this was because the official involved probably didn't want to wade into the spotlight after -- at that particular moment on an issue that the pentagon is not in control. this is an issue that the pentagon is not in control. we have an important time with regard to this legislation with regard to both courts and the legislature. the decision to engage on in issue was made -- we wanted to provide the press with as much context about what the pentagon was doing in light ever --

of the uncertainty as we possibly could. we made this decision because it had to be in background because the individual involved wears several hats with regard to this issue, and in fact, was not the determiner of overall policy and direction where we're going on this. these are judgments made by the white house, by the senate, by the courts, so you -- i think it's well within your right, and we understand the criticism that was made about that particular background briefing, but in all honesty, we felt that was an exception rather than a rule, and that was the context in which we made the decision. >> well, the bottom line is the issue was too controversial for you guys. this is life. life is filled with mind fields, and that seems like you could

use that excuse for any number of briefings, and i'll stop at this point, but that's a good excuse for any number of briefings. >> it is a good excuse for any number of briefings, and we are trying our best not to make that excuse and have people on the record. when it's an instance when we are actually determining policy, decisions that we make essentially are the decisions that are guiding the overall direction. we felt in this instance we were not trying to duck questions, but trying to better inform and inform from our perspective, and we thought that we wanted to put out the person who was best qualified to do this, but we felt that under the circumstances, the choice we had to make does the person go out publicly and therefore risk unintended consequences about the issue itself, or do we try to address what the press is

asking for, and we were well aware that the press was clam moriing for -- clambering for information on this issue. we were generally trying to respond to that press interest, and we let the chips fall where they may, but that was the rational. >> does this mean we can look forward to more briefings from here? >> yes, absolutely. that's the intent of all of us at the pentagon to be on the record, and in fact, we have made a particular effort over the past several months to bring in briefers by exhibits and television from afghanistan at all levels to go on the record. we do this weekly whether it's general caldwell or general clark or general rod rei rsh

rodriguez. we are doing this on the record. in my view there's no perfect prescription on how to do any given thing, but you're right, it's better to do things on the record, and we strive to do that and that explains the decision we came to on that. >> i can give you an interesting historical perspective. in 1968 i reported on my window of the world because they didn't let you have tv or radio. we delivered the "new york times" to every upper classmen's door and we had to give a 3 minute overview of the "new york times" to sleepy upper classman. we go from that and then in my retirement in 2006 it was talk to the press if you want, but stay in your lane.

say what you know. that was about it. it was late in the game that we got into media training where we actually tried to teach senior enlisted and officer components of the military how to engage with the course of state, and it was surprisingly as late as 1994 the courses at the army war college were oversubscribed for how to talk to the press media training, live camera training, so we've caught up a little bit, but i, i obviously, we've got ground to cover yet. >> the last decade there's more emphasis on training too with a special course for that in >> there is. if you don't mind me following what paul had to say. we was a defense information school, and the best and the brightest men and women in

uniform attend that school and they are all over the world. people like kirk who have learned -- who basically had basic training in dealing with the media. i would say though going back to the points that i was making at the beginning about the changed environment that it is time to take a new look, and we are taking a new look at the curriculum there. you have a new generation of communicators in the military. they are not just the people who went to our school who are, you know, the officially anointed public affairs officers. they are the colonels, majors, the lieutenants who have been in the field in afghanistan in iraq and elsewhere who have had to because of the nature of the deployment and the circumstances in which they find themselves communicate in ways they have neither thought about or been trained to do. that's had some really interesting unintended

consequences. the most interesting in my view has been you had people come out of the battlefield with new lessons learned that i think are very applicable and need to be integrated into the training that goes on for those who deal professionally with communications, and in fact, the first time i ever met david petraeus, our conversations focused on how can we get some of those who worked with you and under you in the battlefield to do a stint in our shop so we can incooperate the talents on both sides and move the stovepipes and produce what i think will be better new officers. >> right. kirk, do you want to speak to that? you have experience both here and out there. >> that's a terrific idea. i think he's absolutely right and that our primary communicators and spokespersons

if you will are the soldiers and the people who are going to interact. it's not the public affairs officers, and you know, we facilitate, and we are a conduit to linking the media to our troops because ultimately the troops tell the story and let their actions speak for themselves in a lot of cases. i agree that it's a good idea to look at the curriculum at the defense information school, and i will tell you as a brigade public officers office and a brigade is about a 4,000 soldier formation, we did a lot of media training service for them and workshops and things i was involved in not only for the leaders, but the soldiers as well. a lot of times, embedded reporters are not just going to be around and expose to the leaders in a unit, but they'll be with the soldiers, the troopers, the rank, and infantry

men are part of an squad, for example, and those guys don't need to be forgotten, and we owe it to them as leaders to them. staying in your lane is absolutely critical, and we reenforce that time and time again, sometimes it falls on deaf ears, but this is all part of the lessons learned. i'll relay one aspect. i thought my media training program was great and going swimmingly. i was out on a mission with our call value ri squad and we were riding in the humvee and one of the solders was kind of talking and i was sitting in the back and heading down route jackson in baghdad and the vehicle commander who was a young staff sergeant said, hey, we have media in the vehicle.

i said where? i started looking around, and then i had to stop and explain to him that was a public affairs officer and say i'm one of you guys. i'm not the media. [laughter] it reminded me that as much work as we had put into training our soldiers about media awareness, we still had a long way to go because sometimes there's just a disconnect. a guy in uniform with a camera to them even though my rank was clearly on my body armor and i had the unit patch and all of that, but to him, he was trying to do the right thing and keep his men professal. he wasn't trying to cover what the man was sighing. he was just worried i would be offended or he would misremit the unit. that's what you see at the lower levels, and we have to keep with

it and maintain that training posture. >> right. >> [inaudible] every year about 40 lieutenant colonels an colonels who are new commanders spent two days at the new york new york where "new york times" where they are exposed to the culture of journalism and they look at print and broadcast at the times, and it's the "l.a. times" on the west coast, and it's a great way for the marines who are heading out to understand the culture of those who are embedded. >> it's in proponent of that program was walter anderson the

former publisher of "parade" magazine who takes great pride in that. >> he was a marine and he was actually the catalyst for bringing this program decades ago. >> this is drew davis by the way. thank you for that. that is good. doug, you mentioned it's time to take a new look at the curriculum and people in the military are communicating in ways they never thought about before. journalists are doing the same thing and we're learning facebook and twitter and linkedin and so forth. the military resisted efforts to allow that. i think it was forbidden, and then more recently you begin to embrace this and have begun to encourage it. news challenge winners this year was a pilot project in which a unit in afghanistan had an embedded reporter doing social media and facebook to sort of

give some level of ground truth as to what's happening on the ground there in the outside world and work with the families too. that's an innovative thing. can you talk more about that? we have generals blogging and tweeting and so forth, and the press is doing it as well. that seems like a brave new world for both sides. >> i think it's a brave new world for everybody. i would say this. there are huge strengths to the social media. >> right. >> but nothing is a panacea in communication, and social media is not a panacea in communication. it is a tool that allows people to reach other people instantaneously, and it's terrific for many things. you're right. the pentagon within the last year have made it easier for people to use the social media. this is with the secretary's

blessing, and in fact, one of my colleagues who came to us from google who had been the head of google's mobile division has been a real leader in helping us define and understand the ways in which we can effectively use social immediate -- media, and i'll tell you here we're doing one the ted conferences soon. that having been said, the social media is not the answer to everything, and i personally don't think that the social media is a stovepipe in to which you fit all the other parts of communication in order to figure out how you make it work for facebook, twitter, and the others. facebook and twitter have been great tools as has skype. i think that's the best step forward in helping communication

between families that i've seen. we also have outstanding ability to deal with those who are our adversaries, our enemies, on using the social media. i won't get into specific details, but i will say the feeling of those in a cave out maneuvering and those in the white house is not a truth any longer. i will say this. we have some outstanding younger journalists who are coming to visibility as a result of blogs k and there's some really excellent military blogs. with that having been said, i don't believe that facebook and twitter are their own entities. they are tools just like print and broadcast media and the internet are to be used as tools as communication, and if we

pretend otherwise and think that, you know, this is completely and solely the way of the future, we're making an erroneous choice. >> i think there's pitfalls involved too, and it can be for lack of a better term, a double double-edge sword. kirk, you had run ins in baghdad with a blogger. you want to talk about that? >> yeah, that would be a two hour decision in itself. what we had, you know, the cliff notes version is we had a soldier who was writing anonymously, a diary about his experiences in baghdad. there was problems with that because it's in violation of the policy. he had not disclosed to his chain of command he was doing that and that was just the tip of the iceberg because he was fabricating stories, and unfortunately the publication

wasn't checking those stories. i soon find myself in a situation where it was two-fold. one, we were figuring out who this individual was, and number two, we wanted to figure out what he was saying was actually truthful. we were talking about essentially war crimes. we had an -- a situation to investigate that and if it happened then we had to take appropriate action. what we discovered is it was not truthful and unfounded. it just -- it caused problems to say the least, and so again, it's a reminder of we're not there to -- some of the questions i fielded with the media were, you know, i said it's not a free speech issue. we're not trying to curtail this soldier's right to do that, to be involved and to blog, but he

has an obligation as a soldier to be incompliance with the policy, but more than that, he has an obligation to tell the truth. >> he wasn't just blogging, you know in cyberspace, but writing for the new republican under the name the baghdad die resist? >> yeah, you may recall some of this. it was in 2007. he did come forward, but again, having been involved with the investigation and having seen what had happened, very small grains of truth, but mostly embellishment, and it just created a problem, a distraction for the unit because a lot of those guys were doing the right thing, and they deserved better. they did not deserve that kind of negative focus and attention. >> what are the rules now about blogging? >> yeah, i was just going to ask that. >> yeah, assuming it's true.

i mean, for a soldier on the ground in the infantry and say in kandahar right now. can he blog? >> well, yes. i can't get to the absolute details of the policy because to be completely honest, you know, i'm going off of my experience, my tactical experience that was three years ago. i haven't seen the policy of late so i don't know what's in it, but yes, soldiers can blog. the most -- the stick yis wicket so to speak is an operational security. when these guys are blogging, sometimes what they believe in their mind are incompetitive-- where a photo is taken or something is said can put other soldier's in harm's way. that's what we mean by operational security. that has to be some level of

oversight and it's not curtailing an individual's free speech. it's making sure what they are doing is not putting others in harm's way. that's the bottom line. >> yeah, i agree with kirk. to me, this is one of a myriad of examples of this new world that we're all living in which is in my view defined by the technology has outpaced policy, has outpaced law and outpaced legislation, so what you have are the capabilities to do things you never could do before, and as a result, you're having to deal with questions and unintended consequences for which there are no frameworks. it doesn't mean that we want to -- that we're adversaries, it means that we haven't figured out how best to deal with these yesterday. >> yeah. >> well, we have a lot of ground to cover, and we want to open this up to question. i'm sure one word on people's

mind is wikileaks. quickly we'll talk about the embed situation. i know people like you, elisabeth, have gone out there. i know military reporters and editors have circulated sort of a protest letter in which they said that last month while in kandahar several journalists were ousted of their planned embeds. a dozen reporters were booted from the forward operating place for unclear reasons or because they were in trouble for going to the personnel and not the public affairs group. this was the journalist from ap and npr all complaining. i wanted to touch on that too. we also wanted to quickly get into gan guantanamo, and one of the things that's hard is to get

any transcripts. i know someone there who is saying they still can't get transcripts in what they feel the public deserves in terms of documentation of what's going on down there. why don't we start with the embed thing first if we can. is there any kind of restrictions going on, or is it because of operational, you know, restrictions down there in terms of not being able to go to places because the combat situation or -- >> i'm not the right person to ask in terms of being able to answer that completely. >> right. >> my colleague admirable craig smith who heads communication is doing an amazing job as are all in the communication staff in a difficult situation.

i don't know. i do know that requests for embeds in kandahar are -- there's a waiting list. they have enormous numbers of requests. >> right. >> we're trying to fill them as much as possible, and again, i would have to defer that to my colleague. he'll know the details. i'd feel awkward talking about that. >> sure. >> i can talk about what i experienced in iraq and that is units are limited in the amount of media that they can bring in, and if it's not -- you can't apply a universal template. different units have different capabilities. it's just the way of the world, and sometimes there are situations beyond the control such as weather that prevent transportation of media personnel things. there's very good reasons why this has happened. not having been there, you know,

i'm not a part of that chain of command, so i can't talk to what's going on in afghanistan. i will tell you that i tried as a pao to facilitate as many embeds as i possibly could and tried to work with the journalists to the best of my ability. most of the time we could do that, and i was very fortunate that my higher aheadquarters gave me the headway to work directly with journalists to try to solve the problems and not so much the problems, but the challenges in terms of getting into our formations, but not every head quarters have the same policies and way to do business, and so without knowing how they do it, i mean, i can't speak specifically to that other than to say i think that most public affairs professionals want to get these journalists into their formations. >> right. >> there are going to be challenges. in fact, things are out of their hands, and they just have to work through it.

>> yeah, i don't know specifically what happen there. everyone diverged in kandahar and if you get all the way down there and your embed is canceled, it's a serious drag. i also know of course we had a "new york times" reporter and photographer on an embed last weekend when the photographer was hit by an ied. whatever caused that rash of cancellation seems to have been at least some more going on. >> right. >> and again, i can -- i don't know what was going on down there. >> right, right. let's go to wikileaks for a second. everybody knows the back story, but briefly this summer they released about 70,000 documents about confidential dispatches from u.s. troops in afghanistan, and then just in recent days they distributed nearly 400,000

classified documents from the iraq war, and there's been a, you know, a flurry of responses in washington from both sides of the political aisle, and i think that there are some people interpreting jeff morrell's statement as a suggestion that maybe the federal government is considering having wikileaks being the first u.s. target as cyberattack and using whatever means necessary to shut them down. if you can't stop them in court, we'll use other ways of taking out their ability to do this. i think his remarks, and i could read them to you. i don't get that reading from them, but i think other people have publicly written that. is that something that's being thought about, or what do you do with an organization take wikileaks especially with the obama administration who wants transparency.

this goes further than that line, but i wanted your thoughts on that. >> i want to give a shoutout to my friends and colleague, jeff morrell, who is taking a beating here. he does a great job as a spokesman and deals with the issues that we all are. i don't think he has stated or it is our intent to state whatsoever that we're out to bomb wikileaks. >> no, cyberattacks. >> okay. wikileaks is another one of these. in my view it is the template of the inability of policy and law to keep up with technology. >> right. >> you now have the ability to send anything anywhere to anyone at any time. >> uh-huh. >> in doing so, i think wikileaks has given whistle-blowers a bad name

because there are absolutely justifiable reasons for whistle-blowers to want to make available information that they honestly and truly believe the public needs to know if they have been misled. >> uh-huh. >> i think here this is a different case. >> right. >> i'm not sure what the journalistic credentials are of wikileaks. you have hundreds of thousands of documents released ill leally. they are in the possession of wikileaks illegally and contain information that could put the lives of men and women in uniform in great danger. that point was made strongly in the first batch that was released. the founder of wikileaks said they made an attempt to reduce action, but didn't have the expertise to do it, and in fact, they only apparently addressed 2,000 of the tens of thousands of documents tha