significant amount of each one of our bills.referrino ske result is being the omnibusa ow front of us. so the to tell the pages that we are referring to have worked l their way through a process i would ask the leader if he knows this, and the difference is wed had to cut money to me fill yeaw level of the sessions mccaskill and that is what we have before us and that is what now we are being told after a year's worth of work that someho. w we don't have theeade, capability of knowing what is in this bill. is the leader aware of that? >> i am aware my friend wants to ask a question of the statementh but i would say this to my friend from washington, remembe0 this bill, which is 1900 pages long, consists of the work of 1r subcommittees. it's not -- it's not -- its work that has been done over the lasi year, or more in some instancesl to come up the product. so if you break it down person committee, that is certainly aiu reasonable number of pages ofld each subcommittee.

mr. mcconnell: i would ask my friend -- it's hard to ask a question without making something of a statement in connection with it if that's okay. mr. reid: that's fine. mr. mcconnell: i was not talking about the process by which the bill was developed in committee as i started off, i would say, mr. president, to my friend from nevada. i was commending the committee for its work. i was commenting of the lack of taking the bill up on the floor of the united states senate. over $1 trillion, the basic work over $1 trillion, the basic work fr i would ask my friend was if why these bills enjoyed bipartisan support, and i think they did, why would they not brought before the full senate and passed?r as they would expect to negotiate other priorities. this is the basic work ofwh borh government. why did we not bring any offloo? these bills before the senate rerter w floor?ow >> mn y hope is that we'll take

adwn the smile i have on my fach because the answer to the question is kind of easy. we have had the cloture 87 times in this congress because of everything we've tried to do. i. we have been obstructed., we everyone knows who got very big, issues. when president obama was elected and we found ourselves in a deep, deep hole. it was so deep during the priorn administration will ask a value president obama and president bush, in that month we lost 800,000 jobs. submit a lot to do.ze i know people criticize are doing health care for various bf reasons. there's criticism we did the hou bank was built. we had a very, very busy congress to try and get it all l

in. so i say to my friend, who'm likely as not voting on it now,a but he's the appropriate committee, a wonderfulnd have committee. everyone here knows what we i sy didn't have the event to the hoe intellectual appropriation bills. and i say to my friend, i hope c next year we can get them done.a i think there's more of a cr hae next year because we've gotten a lot done to help get ourselves out of the hole that we found ourselves in because of the previous eight years which created the vehicle we had to dig out of. >> house committee held its first meeting on wiki links today.

>> the justice department has said is that it considering a number of options for

prosecuting wikileaks leader, julia and a staunch but has made no announcements of churches. next a look at the constitutional and national security issues concerning wikileaks. rolf nader is among those testifying. this house judiciary committee hearing is over three hours. >> good morning. the hearing on the espionage case in the legal and constitutional issues raised by wikileaks before the committee on judiciary is now about to take place. we welcome everyone here to the hearing.

in the texas versus johnson case in 1989, the supreme court set forth one of the fundamental principles of our democracy. that is that if there is a bedrock principle underlying the first amendment, is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. that was justice william brennan. today the committee will consider the wikileaks matter. the case is complicated, obviously. it involves possible questions of national security and no doubt important subjects of international relations and war and peace.

but fundamentally, the brennan observation should be in start as. it's an emotional matter. there is no doubt that wikileaks is an unpopular position right now. many feel their publication was offensive. but unpopularity is not a crime and publishing offensive information isn't either. and the repeated cause for members of congress, the government, journalists and other experts, crying out for criminal prosecutions or other extreme measures caused me some consternation. indeed, when everyone in this town is joined together calling

for someone had come at the pretty sure sign that we might want to slow down and take a closer look. and that's why it was so encouraging to hear the former office of legal counsel, jack gold smith who served under george w. bush karsh announced only last week. he said, i find myself agreeing with those who think assange is being unduly vilified. they certainly do not support or like his disclosure of secrets that harm u.s. national security or foreign policy interests. it also the hand wringing over the espionage act shows, it is

not obvious what law he has violated. our country was founded on the belief that speech is sacrosanct and that the answer to bad speech is not censorship or prosecution. so whatever one thinks about this controversy, it's clear that prosecuting wikileaks would raise the most fundamental questions about freedom of each, about who is a journalist and about what the public can know about the actions of their own government. indeed mother's agreement that sometimes secrecy is necessary, the real problem today is not too little secrecy, but too much

secrecy. recall the pentagon papers case. justice potter stewart put it, when everything is classified, nothing is classified. overclassification in the u.s. system means that thousands of soldiers, analysts and intelligence officers need access to huge volumes of purportedly classified material. and that necessary access in turn makes it impossible to affect to fully protect truly vital secrets. one of our panelists here today put it perfectly in a recent appearance. he explained our problem with our security system and why it

bradly mandan can get his hands on all of these cables is we've got low fences around the vast prairie because the government classifies just about everything. what we really need are high since his around a small graveyard of what's really sensitive. furthermore, we are too quick to accept government claims, the risk to national security and far too quick to forget the enormous value of some national security leaks. as to the harm caused by these releases, most will agree that the defense secretary, bob gates. his assessment. and i've heard the impact of these releases on or foreign policy described as a melt down,

as a game changer and so on. i think those descriptions are fairly significantly overwrought and mr. gates continues, is this embarrassing? yes. is it awkward? yes. consequences for u.s. policy? i think very modest. so the harm here, according to a republican defense secretary is fairly modest. and on the other side of the ledger, there's no need to go all the way back to the pentagon papers to find examples of national security leaks that were critical to stopping government abuses and providing a healthy democracy. they happen all the time. in 2005, "the new york times"

published critical information about widespread domestic surveillance. ultimately, we learned of the governmental crisis that included threats of mass resignations at the justice department and outrageous effort to coerce a sick attorney general into approving illegal spying over the objections of his deputy and legal counsel's office. it's not that this leak, we'd have never learned what a civil libertarian john ashcroft is. in 2004, the leak of a secret office of legal counsel interrogation memos lead to broader oblations of the cia's brutal and enhance interrogation

program at black sites. these memos have not been previously revealed to the judiciary committee or to many in congress. some feel this harms national security, but too many americans, the harm is a secret program to waterboarding and other abuses that might never have been and it took for the leak. and so, we want to come as the one committee and the congress that i have a great and high regard for, take a closer look at the issues and consider what, if any changes in the law might be necessary. and i want to welcome this very distinguished panel.

i've read leads into the night and i was awake most of the time when i was reading this, some really great testimony. and i'm so glad you're all here with us. i'd like now to recognize my friend and ranking member, judge lily goal might -- gohmert. >> thank you, mr. president. let me say before you begin might presentation that i liked her categorical need for high fences around a small graveyard. but i'm saying, are you saying this administration is located in a small graveyard? >> see me after the hearing,

please judge gohmert. >> thank you, chairman. and i appreciate the ranking members met asking me to stand in. but the release last month by wikileaks was a little over 250,000 classified diplomatic u.s. documents that international security. our relations with foreign governments and continued candor for foreign sources, many applauded the website and its founder julian assange as the hero, advocating that the continued release of classified sensitive government. but to do so is both dangerous. the cost of the case to reprint claimed increase government transparency. the real motivation and self-promotion and increase circulation to a large extent.

they claimed to be in pursuit of uncovering government wrongdoing, but dismissed any criticism of their interactions may be wrong or damaging to the country. as long as there've been governments, there's been information protected by those governments. there've clearly been documents classified that should not have been classified. while there is legitimate dispute over the extent to which information protecting classified is simply unrealistic to think protection of information serves no legitimate purpose. much attention has been given to this most recent wikileaks release. many dismiss any negative percussions resulted from the leak, arguing the documents will embarrassing to the u.s. did no real harm to the country. but what about previous leaks by this website? on july 25, 2010, release confidential release on the war in afghanistan. despite release, iraq war

documents on october 3, 2010. both of these leaks has sensitive information that may bolster campaigns against us. last month, wikileaks release has tested the spotlight and some say the espionage act of 1970. it is also resurrect it in an age-old debate on first amendment protections afforded to the media publications. but today were confronted with a new kind of medium. the internet blog, with the boundaries of free speech. other balances with the governments need to protect some information? the drafters of the 1979 act could not afford to take the nearly 100 years later, since the government information could be to a global audience instantaneously. iraq is counterterrorism efforts must respond to new and emerging threat, such as homegrown

terrorism. our criminal law must also keep pace with the advancing technologies that enable widespread dissemination of protected information. this time the leak about primarily diplomatic cases. the previous leaks disclosed even more sensitive information. and the next week could be even more damaging. that could expose coordinates of our military personnel are overseas or even be the next unannounced visits to iraq or afghanistan may present depalma. this isn't typically about keeping government secrets. this is about the safety of american personnel overseas at all levels when we put soldiers in commander-in-chief. what that mr. chairman, i yield back. >> thank you, judge gohmert. this may be the last time that we have an opportunity to recognize our good friend bill

delahunt of massachusetts. he's served the committee and a very important way in real to him at this time. >> well, thank you, mr. chairman. you know, as you are aware, i also served on the florida senate committee and during that service, i had the opportunity to chair the committee on oversight. and i must say -- and this is true of both the bush and the obama administration's. it was difficult for me in that capacity. and as difficult for the chair of the full committee to secure information from the executives. i would submit that these particular hearings should be viewed in the much larger context. leaks that obviously put people

at risk, that put the united states at risk and methods, it better, there has to be parameters. i think were at a moment in our history where there is an overwhelming, overclassification of material. anything that we and our role as members of the first branch of government ought to examine very, very carefully that the classification procedures. when you inquire any executive agencies, imposed a very simple question, well, why is the classified cards it's extremely difficult to get a direct and

clear answer. who does the classification? is that the secretary of state or the attorney general? who does the classification? during the course of my service, i discovered it was some low-level bureaucrat. and the process itself is arcane. and there is no accountability i daresay in the classification processes that exist within the executive branch. and that's very dangerous. because secrecy is the trademark of totalitarianism. to the contrary, transparency and openness is what democracy is about. so while there is a focus now on

the issue of wikileaks, i think it provides an opportunity for this committee. and i think this is a concern that is shared by both republicans and democrats about the classification process itself. there is far too much secrecy and overclassification within the executive branch can i think it puts american democracy at risk. and with that, i yield back. >> thank you, bill. i am pleased now to turn to howard coble of north carolina, a senior member who will soon be in the chair of at least one set committee, maybe two. we don't know yet. >> mr. chairman, you're optimistic than i am and i appreciate that. i have no details. i want to consistory marks the

gentleman from massachusetts. this is a crucial issue is known to all of us. and not unlike many crucial issues, perhaps the most crucial issues to raise generally with complications. we have the panel with us and mr. chairman, i yield back. >> judge, would you care to make an opening comment? >> mr. chairman, i do not have any opening recurred comments regarding the testimony, just for a much looking forward to it. i would say bill is the one member i could clearly understand and spite that access over there.

but truly, he's been a good friend and again, just such a valuable member to the house. and i'm hoping that of course he made the decision because he's moving on to something that will be more rewarding than buddies and here congress. again, thank you for the opportunity. i yield back. >> thank you, judge gonzales. judge ted poe, i would recognize you at this time commissary. >> thank you, mr. chairman. i ditto what has been said about bill delahunt, a wonderful member of this committee. i hate to see them go although we disagree on almost everything. a couple comments on the situation. i see two issues. one is we got to find the original leak and what caused it, who did it and hold them accountable. the other issue this spring

sport that after 9/11, the big talk was we need to share information with different agencies in the united states government because we don't know which one agencies doing or knows that should be shared. and so, now we have mass sharing and now we seem like we're going to move away from that because of this situation. i have no sympathy for the alleged beef in this situation. he is no better than a texas punch up dealers that deals with stolen merchandise themselves at to the highest bidder. but he's doing for political gain. he should be held accountable. but on the other hand, i'm very concerned about arvo overclassification of information. the easiest way for a government agency to take information as to say it's classified. only special folks get to know what's in it. and i've been in a lot of

classified briefs. and frankly, i've read a lot of that in the news paper before that meeting never took place and it was a classified. somebody just decided to make a classified and then you have the whole problem of overclassification of documents. and lastly, the security of our information is important. and we have to -- those without this occur by incompetent, negligence or whatever, we have to fix that problem. i'm very concerned about that because of the fact that, you know, it's the greatest power this nation has ever existed it would be to ratchet up our security to keep hackers from getting into it. and why did this occur? who allowed it to occur at what went wrong to make the situation

now go worldwide? it's like a bunch of folks at the bank decided to hold a christmas party down the street and they all took off from the vaults open. there's a security problem with that kind of thing. i would hope we would fix the security problem and find out how it did occur in thing to the local classification and then these for political reasons or other reasons also need to be held accountable. i yield back. >> thank you, judge poe. we welcome our witnesses. ralph nader, professor steve vladeck, mr. gabriel schoenfeld, attorney kenneth wainstein, thomas blanton, director of the national security archive,

attorney abby lowell, well known to this committee in two previous congresses. and our first witness, professor jeffrey stone, professor of law and former dean at the university of chicago law school. he is -- he has written quite a bit of constitutional law, several folks, the first amendment, government power. one of his books, perlis times, free speech in wartime was just recently praised by justice elena kagan is a masterpiece of constitutional history and promises to redefine the national debate on civil

liberties and free speech. we are honored by you being here and we ask you to be our first witness in all statements of all of our witnesses will be introduced in their entirety into the record. welcome. >> chairman conyers, judge gohmert, members of the committee, thank you for inviting me and giving me the opportunity to speak with two of these issues. i'd like to address the constitutionality of the post-show that which has been introduced in both houses of congress. the show back would be an espionage that would make it a crime for anyone to knowingly and willfully disseminate in any manner, prejudicial to the state or united states come any classified information concerning human intelligence activities of the united states. now although this act may be constitutional as applied to

unlawfully leak such material persons who are unauthorized to receive it. it is plainly unconstitutional as applied to other individuals or organizations who my public or otherwise disseminate the situation after it has been leaked. with respect to such speakers, not debate at the best of their lease it expressly limited where the dissemination of the specific information that issue poses a clear and imminent standard gray card. the clear and present danger standard informs the first amendment jurisprudence ever since justice oliver wendell holmes first enunciated in his 1919 opinion in shenk versus the united days. in the 90 years since shenk, the principle that the enemies list it out quickly louis brandeis in his brilliant 1927 concurring opinion in which he versus

california. those who won our independence for brandeis, did not resolve the border at the cost of liberty. they understood that only the emergency justify repression. such he said must be the rule if authority is to be recognized for freedom, such as the command of the constitution. it is therefore always open to challenge the abridging free speech by showing there is no emergency justifying it. this principle is especially powerful in the context of government efforts to suppress these concerning the activities of the government itself, where james madison observed a popular government without popular information as a means of acquiring it is but a prologue to a tragedy or perhaps both. as madison warned, citizens do not know what the government is doing and they're hardly in a position to question judgments which hold the elected representatives accountable.

government secrecy, although surely necessary times can also pose direct threat to the very idea of self-governance. nonetheless, the first amendment does not compel government trained. the. it leaves the government extraordinary autonomy to protect its own secrets. it does not accord anyone the right to have the government disclose information about its actions or policies in these the considerable right to restrict its own employees. what it does not do, however, that the government free to express the free speech of others when it has failed self to keep its own secrets. at that point, the first amendment kicks in full force and is brandeis explained only in emergency cannot justify suppression. we might think of this like the decline privileges. the client is free to keep monitors the group to disclose to no one. he's also freed to disclose to his attorney was under a legal obligation to respect

confidentiality required disclosures. in this step for many attorneys would've liked like the government employee. if the attorney violates the privileged are feeling the confidence, the attorney can be punished for doing so. the newspaper cannot be constitutionally punishable or disseminating information. now, some may wonder whether make sense to get the government so little authority and punish the dissemination of unlawfully leak information, but their sound reasons for insisting on a showing of clear and present danger before the government can punish speech to its context. first, the mere fact dissemination of such information might come in the words of proposed tax in any manner, prejudice interests of the united states government has not been the harm outweighs the benefit of publication. as mr. chairman conyers noted. such information may indeed be extremely valuable to public understanding. second, a case-by-case balancing of harm against benefit would be

unrolled and or predict the ball and impractical. claire wolfe in the realm of free speech and why we get the government so much authority to restrict speech of its own employees rather than insist in every case the government demonstrates the harm outweighs the benefit. tired as we learn from history there is a great questions to leave both government officials and even the public to overstate potential harm in times of national anxiety. the straight clear and present danger serves as a barrier to protect us against that nature. and finally, essential principle of the first amendment is a suppression of the speech must be the government last, rather than as first resort in addressing potential problems. if there are other means by which government can prevent or reduce the danger, it must exhaust those other means before it can even entertain the prospect of suppressing freedom of speech. in the secrecy situation, the

most obvious and correct way for government to prevent the danger is by ensuring information must be kept secret, is kept secret in this valley to the first place. the supreme court made this very point less than a decade ago in the key versus popper in which it held an individual receives information from a source, it was impinged unlawfully. that individual may not be published for public see disseminate the information after the need of the highest order. the court explained the sanctions that is my type to the criminal act to not provide sufficient deterrent than perhaps those can be more severe. but it would be the course that quite remarkable that an individual could constitutionally be punished, nearly for disseminating information because the government itself failed to ensure comment by anon law-abiding priority. this may seem a disorderly situation but they infect come up with a good solution.

we grant the government too much power to punish those who disseminate information way was to create a sacrifice of public liberation. the grant the government too little power to control confidentiality source and was too great a sacrifice of secrecy. the solution is for us to reconcile the irreconcilable values to secrecy on the one hand and accountability on the others by guaranteeing both a strong authority of the government to prohibit leaks and expensive right of others to disseminate information to the public. the bottom-line benefits. the show act is unconstitutional. at the very least we must limit its prohibition, the circumstances in which the individual publicly disseminate classified information about the dissemination would create declared a minute danger of great harm to a nation of people. thank you. >> thank you are in much. our next witness is well known here. abby lowell, esquire, mcdermott

will in memory. as a matter of fact, he served as chief counsel during the president bill clinton impeachment. he's also a former special assistant to the attorney general in this well known for his criminal defense work, particularly in the espionage act matters, including the 2007 aipac case. we will come you back here again. you may proceed. >> thank you, mr. chairman and judge gohmert and it's been understood in the same room. the perspective i bring three points of reference. the first of my service in the

justice department for the attorney general when when issues of classification are being discussed at the second is for an a half years of litigating under the espionage act under the so-called aipac lobbyist is said in 30 days before trial when the justice department dropped it in no representing a former department of state employee, also charged under the espionage act. his oversight hearings could not be more important or more timely to look at this principle that ensues whenever cases like the aipac lobbyist case and i both wikileaks case makes the news. however, this law, as everyone inside is about 100 years old and had flaws and in in terms of it language from the moment it was passed. it is certainly shown to be outdated and at least ever since the debate that occurred in the pentagon papers case in 1971. however as the chair i said, for all those commentators who are demanding congress to send them here and now, this committee knows better to have my news is not the time to pass a new

criminal law, especially when there are important constitutional principles at stake because that's inevitably leads to decades of unintended consequences and litigation. so what this committee is doing to begin the process of carefully considering these complicated issues is precisely the way to go in is the speed in which to travel. let them start by issuing what i think are the four corners of the discussion. the first is that everyone agrees there is a need for a strong criminal law to address real spying and espionage. to address in the intentional disclosure of what could be called classified national defense information with the intent to injure the united states or to assist an adversary. there needs to be allowed with the mishandling of properly classified information and against those three important national security principals meet the balance of protect team constitutional rights. the problem is that the current

law lumps all that i've said together in the sections of the current law applied equally and have been applied equally when they are being used to go after a former fbi agents by, robert hanssen, in disguise and secrecy in job zones or to foreign-policy analysts have any spaghetti lunch across the river near the pentagon. and a lot that can apply to those circumstances is a lot that needs to be carefully scrutinized. one more introductory remark if they made. and this is our deep everybody across from me. when congress starts deciding not to criminalize disclosure of classified information, should take into consideration how much overclassification there is good we've seen in this wikileaks prevents, but very classification status of their accounts with them diplomatically as a private life preferences of a foreign leader as opposed to when we are worried about what the foreign leader might do on a military

action would properly or improperly provoked if they both bear the same classification standard. the problems with this are many. the current law, espionage is so vague and so broad because it deals with words that don't have obvious meanings, such as information relating to the national defense. so they can be applied immediately to a government employee who signed a confidentiality agreement and then can be applied to the foreign-policy analyst who beats up a government employee and discusses what the government employee new. and that can be applied to a reporter who was overhearing the conversation between the government employee and the adolescent print story. not only that, but current laws can be applied to each of these individuals, whether or not there's an actual documents involved or whether the subject of the leak is a normal

conversation. and not only that, prosecution can be brought without requirement of any of the disclosures involving an actual intent to injure the united states or to assist an adversary. and all of this is made more complicated american motives involved, such as somebody trying to bring to the attention of the public july the government has stated or a corrupt contract or when the press is doing its job or when lobbyists are doing theirs. because as the cases date, the first amendment applies to the exchange of speech and ideas in our free society, whether the information is general foreign-policy material or whether it happens to be classified. so the issue is the balancing of the very real and important national security interests of the united states and other dangerous times. over the past few decades, courts have grappled how best to

apply the words of the law to the situations. in the aipac lobbying case, for example, the court made clear to sustain a case, the government would have to prove beyond reasonable doubt that defendants have a specific criminal intent to injure the united dates in the good and bad behavior. now there is the public disclosure of wikileaks and julian assange for thousands of documents, the same questions arise again. does the law applied extraterritorial he? is here is a not a journalist? is their ability to show intent to injure? all of those are beginning to mount again. so while the courts are straitjacketed, this committee and congress is not. it can operate on a clean slate. as i've indicated in a statement, let me give you what i think her five principles of any new law should consider first. we must find different from leaking. the second, we need to define what classified information, the release of which can never be

subject to criminal prosecution. third, we must distinguish between disclosures of classified information done with intent to enter the united states in those very person is not that dean without criminal intent. fourth, we must allow for some defense when information is improperly classified or when that information is so out in the public to base a criminal prosecution on the define the notion of fairness and due process. and last, we need a lot that would rationalize how it is possible to apply to government officials and non-government officials, especially the non-government officials are protected by the first amendment. that is easier said than done and it is the beginning of a long process. i know it is possible to balance those two entries and a lot with my panel members, i stand ready to help in anyway i can. >> thank you, admiral lowell. our next witness, kenneth

wainstein is well known to the committee as well. he testified here last year and he also testified as the assistant attorney general on national security. so we welcome him back. he's a partner at nobody admires and he has a particular point of view that the committee feels is very important we here at this time. [inaudible] >> told him i got closer, please. >> i missed the on button. there we go. i want to thank you again to you judge someone, members of the committee. it's an honor to appear before along with this panel of

distinguished and with unix releases. this reflects a fundamental tension in our democracy. on one hand is the important of the free press on the need to think very long and very high before taking any steps to make sure the media's reporting on the workings of government. on the other hand, there's a need to keep our national security operations confidential so we can defend our nation against the threats it faces. speaker vladek and i testified about their issue before the senate judiciary committee just this may. at that time mark turned revolved primarily around the policy of a link to a traditional news organization. since may, whether commode following there is a much more serious threat. threat posed by an organization that is committed not to the traditional media functions reporting newsworthy, but the mass and indiscriminate disclosure. thanks to ricky weeks, the government now has two important decisions to make. versus whether to prosecute

assange and wikileaks. second is to strike a better clear balance between security and freedom of the press. in terms of prosecution, the stakes of the government are high. it gohmert and assange faced no charge, which are as bad as their basis if i've ever heard, they will conclude their legally invulnerable and redouble their efforts to match or exceed the recent exploits and copycat operations will sprout up around the internet. i was encouraged with the attorney general's remarks the other day and night when the justice department for purely undertaking a careful but determined effort to look into prosecution. if this ever does in fact go into a criminal case against assange and wikileaks comfortable raise hotly debated issues, which would be a strong constitutional challenge of the first minute. the main issue here will be the following. if wikileaks can be charged with espionage for these releases, there is no legal and no logical

reason why similar prosecution cannot play against all the other mainstreamed organizations because those organizations at one time or another published similar sensitive materials. if every news outlet that country for prosecution and what habits of freedom of the press. it is seriously a concerned and why the government has never processed for espionage and is the reason we all think through the implications before they prosecution here. key to overcoming this concerned is to demonstrate that wikileaks warrants for successful treatment because it is fundamentally different from other anvil media organizations. by showing for instance while the media focuses on disseminating newsworthy information, wikileaks focuses first and foremost and simply obtaining and disclosing official secrets. while the media gathers news to investigative reporting, with unix users encrypted chop boxes specifically designed to collect that information and circumvent

the law. while the media typically publishes only those piece of sensitive information that relates to a particular story, which he mixed indiscriminately releases huge droves of materials. by clearly showing how wikileaks is fundamentally different, the government should build to demonstrate prosecution here with the exception that is not designed to be more aggressive prosecution effort against the press. the government second decision here is whether to revise the espionage act. i'll agree to the statute is outdated and could use revision on a number of points such as verifying the level of intent required to prosecute in the case, determining when the government does or doesn't need to show the leak actually risk damage to our national security before proceeding with the case. dropping the term national defense information and providing a clear definition of the information protected by the espionage act. the clarification of these issues would go a long way to make in the statute were directly relevant to the espionage grant to the first

century. wikileaks presents a challenge for the executive branch which now has to decide how to respond, but also presents a serious challenge for congress. it has to decide whether we need new statutory tools to deal with this new threat. i commend the committee for stepping up to the challenge. given the fundamental importance of this issue towards civil liberties and national security, i'm confident. i appreciate you including in this effort and i stand ready to answer any questions you may have. thank you, mr. chairman. >> we appreciate you coming before us once again. i think most people on the committee have resigned to the fact that we have to look at the espionage act in the coming congress. question is of course, what do we do and how much change are what will we be talking about with you when we begin our question.

welcome, mr. schoenfeld comment senior fellow at the two, well-known author of necessary secret and national security, the media and rule of law. you've testified in congress on the responsibilities of the press during wartime and we welcome you to the judiciary committee this morning. [inaudible] >> it's an honor, mr. chairman, judge someone, distinguished members of the committee to appear here today before you to discuss this issue of such vital concerned to our country. the recent massive disclosure by wikileaks of diplomatic documents has sparked the most

intense discussion of governmental secrecy and our countries and the pentagon papers were published by "the new york times" in 1971. pitting officials at the obama administration had deprived the damage, ranking republicans and democrats in congress have called to the prosecution of julian assange under the espionage act. whether or not the administration takes the collection against mr. assange come we should not lose sight of the broader contest in which this has occurred and i would like to know several of its significant futures. first, we live in the most open society in the history of the world, thanks in part to an unfettered press and first amendment and thanks in part to laws like the freedom of information act and presidential records act. we as a country are extremely well-informed about what our government does in our name. second, even as we are a wide

open society, we have too much secrecy, numerous observers across the political spectrum concur as we hear on the panel seemed to be concurring today that there is a great deal of myths and overclassification within our national security bureaucracies. third, owing in part to miss and overclassificationcomes a week of secret information to the press has become part of the normal and former process by which the american people are kept informed. a study by the senate intelligence committee counted 147 disclosures of classified information that made their way into the nation's eight leading newspapers in one six-month period alone. none of these flakes resulted in legal proceedings. fourth, many leaks are innocuous and or authorized. for example, bob woodward's recent book, obama scores is

replete with codenames and descriptions of classified programs. no one has pointed to any specific damage caused by this book, perhaps because the only damage done was to the integrity of the secrecy system itself. fifth, some leaks are unauthorized and exceptionally damaging. in 2006, to take one example, "the new york times" revealed detail the joint cia program to monitor the movement of al qaeda funds be at the belgian financial clearinghouse donna swift. times published the story tends to leading government officials in both parties. there is reason to believe that our ability to track the flow of al qaeda in pahlavi and funds was severely hampered by the publication of the story that provided to discernible efforts if any. so i sketched here a structure

whittled with conservations. we are wide open society. on the other hand can lead to much secrecy. on one hand we have authorized and innocuous leaks of government secrets. on the other hand, with unauthorized and highly dangerous leaks. and this is a very unsatisfactory state of affairs that we began to pay a high price for it. there were five things we need to do in my judgment. all of them interlinked. first, we need to devote more attention and resources to declassification of combating overclassification. her secret for more national secrecy policy will help us to preserve truly necessary secret. second, we need to make sure that legitimate whistleblowers have viable others other than the media to which they can turn. third, we need to reestablish deterrence and prosecute those in government who violate their confidentiality agreements and pass secrets to the press

enacted by which he leaks. the obama administration has been doing this with unprecedented energy for the last 24 months i've met ms. passage of leakers, more than all combined. fourth, we need at the very least to bring down the weight of public programs of those who disseminate. in spite of the house of representatives attributed to that effort in 2006, when it passed a resolution recommending "the new york times" and other news organizations for repealing this with monitoring program. and finally, we sometimes need to take legal action. we have never had a prosit keeshan of immediate outlet in our history, although we came close during world war ii when the "chicago tribune" revealed that we have broken jobs in these able codes. while i believe the first amendment would not protect a news outlet that endangered the

nation as the "chicago tribune" did in 1942, reasons of prudence suggest such a prosecution should be a last resort used against media outlets only in the face of reckless disregard to the public safety. wikileaks, whether it is or is not a news organization is certainly exhibited such reckless disregard. thanks in part to the march of technology, and is then able to launch what might be called alan keyes, leaks of mass disclosure, leaks so massive and volume and so indiscriminate in what they convey that it becomes very difficult to assess the overall harm precisely because there's so many different ways in which that hermits occurring. the purpose of these leaks is to cripple or government, which mr. assange believe is a quote or return and security, close quote. but the united states is not such a conspiracy. it is a democracy. at this democracy has every right to create its own laws including secrecy and see those

laws are respected. as a democracy, it has every right to protect itself against those who would do it harm. thank you ran much for your attention. >> thank you so much, mr. creed bro and mr. schoenfeld. our next week as, professor steve vladeck is professor of law at american university. he was part of the legal team that successfully one honduran versus rumsfeld, challenging former president george w. bush's use of military tribunals he is well known to the judiciary. and does the wikileaks controversy has been voted, she is further distinguished himself

as one as the foremost national expert on the matter. we welcome you here. >> thank you, mr. chairman. chairman conyers, judge gohmert, thank you for inviting me to participate in this hearing. i hope my testimony was found too much like a broken record. you know, testifying before the house select committee 1979, 20 lap him who was in the general counsel of the cia described the uncertainty surrounding scope of the espionage act as quote the worst of both worlds, unquote. as he explained, on the one hand jobs the ohio and are not for us because it is so obscure. on the other hand it is likely to be ripped these laws deter debate by persons who must be a censure of their liabilities if i am unsure of their obligations. whatever one's views of what you leaks of julian assange is an

individual or disclosures of pacified information has driven home critique of the uncertainty surrounding the statute benefits no one and leaves many questions unanswered about may be liable and about what circumstance or what types of conduct. my testimony today of a too briefly identified by paperweights in which the espionage act as currently written to create problematic uncertainty and suggest potential immediacy of we addressing these facts. ..

distinctive defense disclosed and national defense information in them on espionage cases. thus the government has traditionally been forced to shoehorned into the espionage act to the distinct class of cases that raise three distinct set of issues, classic espionage and the retention or the redistribution of national defence information by private citizens. again, whatever one's view of the merits i very much doubt that the congress drafted the espionage act in the midst of the first world war command for it to cover each of the categories, let alone cover them equally. second, the espionage act does not focus solely on the initial party who wrongfully discloses national defense information. but applies in terms to anyone

who knowingly disseminates collis reduce or even retains national defense information without immediately returning the material to the government officer authorized to possess it. and the act draws a distinction between the league, the recipient of the league or the 100 per cent to distribute retransmit or even retain the national cable defense information but by that point is in the public domain. so as long as they know or has reason to believe the conduct is lawful, they're violating the plan language, regardless of the specific intent and notwithstanding the fact that by that point the proverbial cat is long since out of the back. struggling with the first two defects have reached a series of disparate conclusions as for the requisite men's area that individuals must have to violate the act. the us and largely to of the the first amendment concerns, the judge in the apec case that was testified about that the

espionage a second country as he explained where as the statute will fill this requirement obligates the government to prove the defendant's know the disclosing classified documents could threaten national security and devotee will it leaves open the possibility is the can be convicted for these acts despite some salutary motive. bye contrast, the reason to believe requirement that the company's disclosures of information as distinct from documents requires the government to demonstrate the likelihood of the defendant's bad faith purpose to either harm the united states or to form the government. whether or not one can distinguish between the disclosure of the documents and the disclosure of information in the digital age is clear at the very least that nothing in the text statute speaks to the defendant's bad faith, nor is there a precedent for the proposition that willfulness which the espionage act does require is even remotely attend to the efficacy. in other words, courts have basically stumbled around to try to mesh the first amendment concerns with the very big

language of the statute. fourth and briefly, the potentially sweeping nature of the espinel act as currently written may inadvertently interfere with possible loss, for example though whistle-blower protection act protect the disclosure of a law violation of any law, rule or regulation only if the disclosure isn't prohibited by the law and if such information is not required by executive order to be kept secret in the interest of national defense or the conduct of foreign affairs. similar language appears in most other federal whistle-blower statutes. i daresay that the government would be reluctant to prosecute individual who complied with federal whistle-blower laws but i think that the statute could be amended to remove that from even a realm of possibility. finally i won't even talk about this in detail because it has been mentioned by my colleagues the problem of the over classification should there be a defense for improper classification how we actually attack the elephant in the room when we are talking about the disclosure of things perhaps should never have been kept secret in the first place.

what then is to become? perhaps unsurprisingly in light of my observations of that and those of my colleagues i recommend free changes to the espionage dhaka. first, in turn is a clear and precise specific intent requirement that constrains the scope of the espionage act to cases where the defendant specifically intends the disclosure to harm national security and or benefit of the foreign power petechia already heard this one. second, create a separate lesser offense for the unauthorized disclosure and retention of classified information and specifically provide either the provision does or does not covered by public distribution of such information including by the oppressed. if this committee and this body does decide to include print publications, my own view is the person and requires the availability of any number of affirmative defenses that the disclosure was in good faith, that the information was improperly classified, that the information was already in the public domain, and or that the public resulted from the disclosure outweighs the

potential harm to the national security. there and finally, and would involve the espionage act any unauthorized disclosure statute and express exemption for any disclosure the discovered by applicable federal whistle-blower statute. mr. chairman, in summation, testifying or riding in the review article about 40 years ago how edgar and schmidt, to columbia law professors wrote that we lived since world war i in a state of the mind determinants of the rules of the law. if anything such benign and determined had become more pronounced in the last 40 years and if recipients are any indication increasingly less denied. thank you for the invitation to testify. i look forward to questions. >> welcome you have left us with some very large challenges, professor. we appreciate it very much. our next witness is the director of the national security archive at george washington university,

professor thomas in the year 2000 the archive won the george polk award for, quote, piercing self-serving deals of government secrecy biting journalists in search of the truth and informing us all. he is also the founding editor and board member of free the information dhaka.org, a network of international freedom of information advocates. i read your prepared statement with great enthusiasm, and we are happy to have you here today. >> mr. chairman, it is a great honor for me and judge gohmert and also to be in the middle of this extraordinarily high-level tutorial and the espionage act and the constitution. i feel like a grad student again and it is a joy.

i wanted to thank you for resurrecting migrate your quote but we have no fences around the vast prairies of government secrets where we really need tall fences around small graveyards of the real secrets and that is a point i want to come back to today. i have three points. one of them is the government always overreacts to the leaks, always and all you have to do is say the phrase watergate plumbers and you know what i'm talking about. back then they were discussing firebombing of the brookings institution on the chance to might be a copy of the pentagon papers. today you're having debates on fox news listening to targeted assassination attempts. i've got to say she gordon liddy would be right at home and both is absurd and the overreaction the government typically does this not to kill anybody or firebombs something, but to go right to the second major point i want to make today, they are going to classify more information. what i'm worried about most is the backlash. in my prepared statement i've got multiple the samples of all the estimates and they range from 50% to 90% of what the

problem of over classification really amounts to. governor tom kean, head of the 9/11 commission after looking at all of the al qaeda intelligence we gathered before 9/11 set you know, 75% of what i saw that was classified should not have been and the commission said we not only needed to do information sharing between the agencies, we had to do information sharing with the american people because that's the only way we could really protect ourselves. but a great lesson that is. and that's the system is so overwhelmed with the secrets that we can no longer really protect the real ones a weekend let out the ones that would actually keep us see her. and i think it's a mistake to try to see this as a balancing test. it's not a balance between openness and security, the findings of the 9/11 commission was more open this would have made us more secure. that's when you do in an open society to keep yourself safe. you're not see for in the dark. you don't hide your vulnerabilities coming to expose them and fix them. that's how we proceed in

america. the third point i want to make about where we are today we are in the middle of a center and one senior government officials i really respect holds the appearances, as the audits, pushes back against excessive secrecy caulkett wikimania, we are in the middle wikimania and it's been a lead to more heat than light. target assassination is only the most extreme case, but look at the other proposals we've got on the table in the front burners to try to push back punished wikileaks to push against speech. we've got to look at each one of those proposals and say is that really going to address the problem? is it going to reduce government secrecy or add to it? is a going to make us more safe? is going to make us more free and do that test. the wikimania is coming from a series of my statement i call wikimyths pittard hasn't been a document on. everyone uses the phrase. there hasn't been one. less than 2,000 tables are on the public record today out of

the database and the editors of amar and the guardian of "the new york times" say it is consulting with them about what to publish, but to react and during the dialogue with government officials in a pretty extraordinary and responsible way. it's a very different posture i should say that they had even six or eight months ago. the criticism they've gotten from journalists like us and from the public about endangering people's lives in afghanistan and elsewhere believe it or not i think they have heard it. there is no epidemic of leaps in fact all four of the big wikileaks have come from a single person as far as we know, bradley manning. how to use of the bradley manning problem? you could do a simple thing. the department has already done and here is a rational security policy, just like you got to people to launch nuclear missiles and to handle communications manual that has codes, have two people before you can download something from a secure network. pretty simple. that would have stopped abruptly

manning, right? boreman send out to people as missionaries because that is how you have accountability, right? you don't have solos. okay. there is no diplomatic meltdown from the wikileaks. there's a lot of rhetoric but robert gates, who ought to know, he served every president in my lifetime as far as i can tell, and mr. chairman, you quoted his remarks, and yet it's awkward, yeah it's in their missing but no, it's not a meltdown. it's going to make the job harder for diplomats, maybe somebody will have to be reassigned but you know, in the long run it's probably in the american national security interest for more foreign governments to be more accountable to their own citizens for their diplomacy. it's probably in our national city inches for the king of saudi arabia to be on the public record more often and the chinese bureau members to get exposed every now and then. that might be a long-term goal of american national security to policy out to be about. finally, there is not a set of

wikiterrorists. i wish every terrorist group in the world would retire ambassador in their local town. you know, a day or week before they are about to launch something and ask the ambassador hey, would you help us make sure nobody innocent gets hurt? would you help with thus? we would be glad to talk with you. i understand why the ambassador didn't believe them because wikileaks said we are keeping anything you say to of confidential. it's hard to square with the previous statements of wikileaks, the language of a terrorist group would get into partnerships with loan and the guardian and "the new york times" to assess the damage might be to redact their own documents to put regulators on the bombs they drop. wikileaks isn't terrorists, so that brings me my final point in the recommendation of this committee and to the prosecutors across the river in alexandria which is restraint. i know you don't usually have witnesses come here and say let's all go to the map but you know, sleep deprived washington we could use a little more restraint. i would say leave the espionage

act back and mothballs where it is right now and should stay calm and in fact what we know for freedom of information request there is still classified documents from 1917 devotee of the espionage act very good company. don't mess with it. leave it alone. our fundamental test should come out of justice stewart and the pentagon papers case and some wonderful articles that jack goldsmith has written in the last couple of years where he says look, our problem is the fundamental cause of the leaks is a sense of illegitimacy that is spread by excess of government secrecy. how do you address that? reduced the secrecy. how're you deal with the legitimacy problem you make sure as the secret as possible our help and protect them very strongly. so the test is for all these proposals legislative and otherwise, does it send a signal that will actually reduce government secrecy? does it send a signal that we need maximum possible disclosure in stewart's days to have a system that actually has credibility and can protect the real secrets and where we can

protect ourselves? thank you for this opportunity to engage in the state. i hope it will reduce the mania and cut through some of the mess. thank you. >> thank you so much. ralph nader is well known leading advocate, author, lawyer, presidential candidate, but atlantic monthly has named him one of the 100 most influential americans in history , and i thought i would put that in the record so that more people that read the atlantic monthly would know about. we welcome you once again to the judiciary committee, ralph nader. >> thank you, mr. chairman.

thank you, mr. chairman, congressman overt and the other members of the committee, for this important and timely hearing. a lot of interesting and good points have been made and there is no point for redundancy. i would like to mention that we ought to look at the issue of government secrecy and government openness with historic cost benefit evaluation. i worked with congressman john maus and 66 on the information act and i saw the fervid opposition the bureaucrats and the executive branch to what was then a rather modest piece of legislation. i then worked with him on strengthening the 1974 freedom of formation amendments which made our freedom of information act arguably the best in the world and i also saw the same opposition. i think that people like the in the patrick moynihan and his book on government secrecy point

out that one of the first victims of government secrecy is the congress itself. the congress repeatedly has been repudiated from getting the information in order to perform its constitutional responsibilities such as its war making power, oversight subpoena power, its appropriations, deliberations and many others. ruth fine has decried this deprivation of information on the part of by the insipid branch, veazey converse as a principal cause of weakening what is supposed to be the most powerful branch of our government. if you look at the historical record, the benefits of disclosure vastly outweigh the risk that comes from disclosure.

war could have been prevented if the american people knew what was going on in of the spanish-american war and world war ii and the tonkin gulf resolution if the american people knew what was going on before the invasion of iraq with the line is, the cover-ups, the distortions, that now have been historically documented by the bush administration including richard clarke, the anti-terrorism counselor to president bush among many. what's fascinating about this controversy is we have to avoid it becoming a vast destruction focusing on the so-called weeks instead of focusing on the abysmal lack of security safeguards by the executive branch of the u.s. government and making those who set up this

poor system or who allowed it to be penetrated accountable. the destruction also is a way from the lack of accountability for the executive branch officials who suppress information. how many times have you seen those people prosecuted at the highest levels and the mid levels of government? the suppression of information has led to far more loss of life, to a position of american security and all the other consequences that are now being attributed to wikileaks and julieanna staunch. a million iraqis have died as a result of the invasion. 5,000 u.s. soldiers, 100,000 sick and injured and traumatized country bonaparte, more violent opponents to our country, more national security. we have to be very careful here

that the congress does not stampede itself by executive branch pressure to repeat the patriot act. when this committee issued a pretty sound piece of legislation with hearings bipartisan and then was stampeded along the rest of the country by carl gove and george w. bush with this notorious patriot act. the stampeded legislation always comes back to haunt it offers. furthermore, i am very disturbed by the reaction of attorney general holder. i think he's reacting to political pressure and he's starting to fix the law to meet the enforcement policy. and that's. he said the other day the national, quote of the national security of the united states has put at risk the lives of people who work for the american people have been put at risk,

the american people themselves have been put at risk by these actions that are believed arrogant misguided and ultimately not helpful in any way, and of quote, referring to the wikileaks disclosure by "the new york times" and the guardian and other newspapers. those very words could apply to the bush administration and the obama administration's military and foreign policy. as the have put us in greater risk and it's very important for us especially the presented by congress that the pension for secrecy is not nourished further by the wikileaks events which are going to unfold in greater magnitude in the coming weeks to leave millions of citizens in our country with a debilitating dictatorial for devotee to further concentration of authoritarian power in the executive branch. floyd abrams, not known as a

radical, arguably the leading first amendment and practitioner in the country said, quote, in responding to senator lieberman's precipitous urging for holder to indict assange said, quote, i would say the potential risks of we the benefit of the prosecution. i think the instinct of prosecution is rational and i don't mean to criticize the government for giving serious consideration, but at the end of the day, i think it could do more harm to the national security properly understood than letting it go. jefferson and madison had it right, information as a currency democracy, freedom of speech is inviable, and i would add that secrecy is the cancer, the destroyer of democracy. we have overwhelming it samples some of which were in your statement, mr. chairman, of what happens when information paid for by the taxpayers reflective

of the public right to know is kept secret. if you take all of the present and probable future disclosures under the wikileaks initiative, the vast majority should never have been classified, the vast majority are reprehensible use of people employed in taxpayer dollars, the vast majority should have been disclosed if not never stated for the benefit of the american people to hold their government accountable. forbes magazine and the cover story in its edition of december 20 if out lines in an interview with julian assange beverley your next year the beginning of the discover believe to discover of corporate documents will start. early next year, ford said, quote, a major american bank will suddenly find itself turned inside out tens of thousands of

its internal documents will be exposed on wikileaks dhaka or with no polite request for an executive response. now, the importance of that is the danger of the following coalition appearing in the coming months. you have the government bureaucrats who transcend political partners. the government bureaucrats and corporate executives who want to destroy the provision for the whistle-blower protection in the new financial reform act as we speak they banned together in order to focus on the wikileaks me and try to tear into the to stampede congress and perhaps public opinion into enacting legislation that will further stifle the right of the american people to know and further enhance those who believe that you can decide for the many and concentrated power in the

executive branch can make a mockery out of the constitutional authority reposited in the u.s. congress. we hear a lot about the information age and we hear a lot about what it's supposed to do for us. but the risk in the wikileaks overreaction to control of the internet and to damaging a dissemination of accomplished access to information nationwide is very, very serious. that is only one of the consequences that can occur if the congress allows itself to overreact and if the press does not take a measured view and hold to account those who are calling for executives assassination for repression for the detonation of due process against people who've received information from internal

government sources. i think the proper range of government security is now being deliberated in the executive branch, but it needs to be stimulated by congress. at darapa the purpose is simply working on a fix that this type of disclosure never happen again. many people think that that cannot be done. that the internet is out of the bottle. but it does seem to me that we should be very careful in conclusion and not developing a bill of attainder mind set if i may use that metaphor. if it's okay for the obama administration officials to conspire or collude with bob woodward to use a non-normative intonation of those words, and weak cables and all kind of secret information and do it

with impunity with a reporter then is in a book it does seem that we are on our way not for developing equal protection policy, but for the kind of discriminating policy that will make our legal system not reliable and is subject to the distortions of repeated -- >> mr. chairman, mr. chairman -- >> i will leave you with that mr. chairman. thank you very much. >> okay. moot point. [laughter] >> thank you, ralph nader. and my deep gratitude to all seven of you. this may in some ways be one of the finest discussions the committee has had in the 111th

congress. i am going to take my time instead of directing specific questions, to ask all of you or any of you now that you have heard each other but you may have a reflection, while you've been here in the hearing, you have thought of something you might like to add to your statement already to have this opportunity to do so now. >> mr. chairman, one thing i would like to respond to briefly is a point that my colleague to the left made the point i understand we're grappling to figure out for the first amendment applies and who is a journalist and who isn't, and i know many have said wikileaks

and assange are not because the use the phrase or don't perform the function of being selective. i think that is a dangerous slope to be standing on. because it puts in the editorial room individual prosecutors who will make the decision as to who was a journalist and who isn't and to the individual quirks of the place as to what deserves first amendment protection and what does not, and it doesn't distinguish between what wikileaks has done and when a more traditional media outposts a document on its website so it makes for i believe it difficulty and i think it's one that cannot be legislated it has to be decided in another fashion. but i do want quickly to point out that dhaka it's easy to say. in american history the function of gathering information from the government by whatever source and disseminating it to the public is classic journalism

>> yes psp mix before, mr. chairman. i appreciate the point that whenever you ask anybody be at a court or prosecutor to try to distinguish between one person as a journalist and mother person as a journalist is a dangerous slope to be on to read to responses to that. one is we are on the slippery snow. that is what the law allows as it stands and it is made very well the current law allows the government to prosecute both the recipient of the information as was the week of the information to read the second point is you if you assume there is ever going to be a case where a reporter or a person in the position of the news, the recipient of the information can be charged then that line has to be drawn. so back to "the chicago tribune" case which is the sort of classic 1942 tribune actually reports that we've broken the japanese code. the japanese had paid attention, millions of lives, including

many of our parents, might have been lost. they didn't of course and the end of not prosecuting the case but many or most of us agree that is a case so egregious that new spirit, that reporter should or could be charged. if you assume there is such a case and somewhere along the line it has to be drawn and my point would be is wikileaks aside from whether you want to call them a newspaper or a news organization or not, is there a mission and mode of conduct sufficiently divergent from the traditional news organization tied the first amendment is designed to protect that it falls beyond that line so it can be prosecuted without the first amendment standing in the we've the prosecution and without other news organizations living in fear of the news organizations that pursue the traditional purpose of news and pursue the traditional mode of conduct of news gatherers and reporters would then not live in fear because wikileaks got prosecuted they are going to be prosecuted and therefore their

actions wouldn't be chilled. that is the argument. so while i agree with mr. lalinde definitional distinction is difficult and can be dangerous, it's where we are right now and i think wikileaks, an argument can be made that wikileaks is exceptional enough of a situation that the line could be drawn without such damage to the first amendment. >> [inaudible] >> i would also compare this case to the pentagon papers case where the time spent a great deal of effort redacting the documents before it published them, which is not what is taking place here. this is a very different kind of enterprise, and of course in that case that was a prior restraint case and the supreme court ruled that it was not -- the standard hadn't been met for suppressing that information is as often notable that five of the nine justices said if the case came to them after publication as a prosecution

they would strongly consider publishing the times prosecuting to the conviction of the times of the information was of the character that was prescribed, so i think the prosecution of wikileaks, just judging by scandal we have here in the pentagon papers case it is a viable possibility. >> yes? >> thank you, mr. chairman. on the discussion about whether wikileaks is part of the crowd roared up wherever that is a fruitless labor that. i agree drawing a line along those directions is simply not going to be coherent. but i also in terms of a summary of things want to come back to how clear it is from this discussion that the starting point is the classification system, the bottom line is it cannot be any coherent solution to these issues without going back and examining the classification process and standards and that unless we do we focus what has happened

essentially over the last 70, 80, 90 years we have run amok with secrecy and that's created the problems we see here. it's denied the congress access to critical information and the courts access to critical information and the american people access to critical information. and unless and until we go back and we fix that, all of this is spinning wheels. i think that is the place this committee and congress to start the inquiry. >> professor and then ralph nader. >> mr. chairman, i just want to with my own peril try to correct mr. schoenfeld's analysis of what is going on here because in fact a great deal of reduction is going on here on a daily basis, and we have extensive descriptions of it and the editor's notes by all the media outlets for publishing stories on this matter, and they have testified to this fact that

wikileaks is following their lead after the reporters engage in exactly that discussion with the government of the risk is which is a discussion "the chicago tribune" did not have in its case and was its own i think journalistic failure i would argue is a great deal of reduction is taking place and i would point also to a certain trajectory and i suspect that mr. assange's lawyers have been to read some of mr. wainstein's testimony in advance because they are doing very smart things to eliminate exactly the distinction that you are trying to draw. they are asking the government for feedback on the documents. they're taking care to follow the lead of the media. they are actually doing the publication in concert with major media organizations to have the capacity that they do not have to do reporting and in fact they are looking more and more like a media organization but i will even step back one from that because my reading of the first amendment as a layperson is it also protects

speech and discos to professor own's print not only freedom of the press but speech, and it seems to me that you will run into a really difficult problems not only on the media slippery slope, but on speech, and it may go to motivation, it may go to this fact is over classification. i pointed out in my testimony in their written statement that one of the most striking things about the tables on the record is the fact that so many of the confidential and secret once shouldn't have been classified to begin with. so you're going to be in a mess i think as in any kind of prosecution. i will leave it there. estimate mr. schoenfeld come laureate entitled to a brief response. >> well, i count myself in agreement with many things mr. blanton said about one thing i strenuously disagree with is the notion that wikileak is responsible in what it's done. they may have indeed redacted some of the documents and the most recent disclosure what we have had the two previous large

numbers of documents and by the sea to thousand cases referred to in my judgment is a large number of documents and these were documents that were also about military operations in the field reports, and a number of congressmen have referred to secretary gates remarks as missing the damage done by the latest disclosures. as one looks back at what his remarks were this past summer he said the lives of american soldiers and of afghan civilians who cooperated with efforts were placed at risk in the chairman of the joint chiefs of staff has said there was blood on the hands of wikileaks to read these views are entitled to a great deal of respect to the notion that it is responsible seems to me unsupportable. >> i would like to submit, mr. chairman, with your permission for the record an article in a short article in the national journal called

breaking ranks, ron paul defense which the leaks where he asks his colleagues which evens caused more deaths, what, the lioness into the war for the release of the wikileaks papers, and of quote. i would also like to introduce into the record the harvard law professor jack goldsmith came out of the bush administration seventh thoughts on wikileaks and would think the description of top obama administration officials cooperation with bob woodward releasing top-secret programs, code names, documents, meetings and the like. i would also like to include this full-page ad in "the new york times" today by almost 100,000 australians entitled wikileaks are not terrorists and it is a rather sober and poignant appeal to australia's malae, the united states to

coolidge cool it. i would also conclude in the record the full article in forbes magazine on forthcoming disclosures in the hundreds of thousands of documents of the corporate crimes, corporate abuse, corporate cover-ups that julien assange assured for this would be forthcoming and to reduce our ethnocentrism, mr. chairman, i would like to note that wikileaks does not just the united states issue but there are people in peru, ken yep, australia, iceland, switzerland and other countries who have benefited from wikileaks disclosures of rampant corruption and injustice in those countries. >> without objection, your several documents will be accepted into the record.

we have a record vote and so we will take a brief recess and then resume the questioning of the members. thank you for being patient. [inaudible conversations] [inaudible conversations]

>> the committee will come to order. before yielding to bob goodlatte, i wanted to have just two minutes further for any of you who wanted to add to the discussion we were in a mutually in terms of exchanging ideas and views on comments made by other panelists. >> mr. chairman, i think we can to complete and total consensus. [laughter] >> yes, right. as my voice this to me, you're right, dad. [laughter] >> anybody want to weigh in? >> i'm looking at cannes because we had this argument during the

break. >> that's right but we kissed and made up. [laughter] >> i will jump in on one point which is everybody's talked of the problem of over classification and i just want to address that. i agree that is the problem, no question about it. i actually applaud the president for his having undertaken an effort to review the classification process in place and try to, you know, get more transparency and reduce the classification of information. i guess my point would be this though, that is a problem, and it's a problem in terms of the reality because it chokes off the flow of information that should go out to the public, information that is insensitive but also it is a problem of credibility because the government has less credibility and says these are secrets and will be some fraction of them really are. but keep in mind that is one issue and that doesn't completely solve this problem, so while yes, we need to address that, the question of thing that is out there now that has imposed by wikileaks is what we

do about organizations out there whose purpose is to try to get secrets? so i guess my -- i think of this let me be a football team, a defensive coach a football team is trying hard to -- it doesn't defend against the run. well you don't just fix that by going out and getting a good defensive end, you also probably need a good middle linebacker, so if you look at dealing with the prosecution and defense and that's fine, that helps but you're also going to need a good linebacker to try to stop the run so my point is we also need to deal with what do we do with these organizations that are kind of new out there on the scene like wikileaks but are doing the best to get our secrets out there. >> nothing like a sports analogy when we are in a complex matter. well, i would like now to turn to our good friend, bob goodlatte, who is a senior member of this committee and serves with great extinction.

>> thank you, mr. chairman and for holding this hearing. i think this is a very important subject, and this panel has been excellent in offering us a number of perspectives about this and i don't know that we will get quite the unity that mr. blanton claim, but nonetheless i still think there's an increasing agreement on what are the problems and what are the limited solutions we have. i would say first of all the lack of security safeguards for protecting classified material is stunningly poor and this problem is enhanced by the use of modern technology that spreads it around in places where i'm sure many of the people what some think of secret don't even know who is responsible for keeping the secret for them and that is clearly the case where though one member of the u.s. army having access to it and apparently turning over hundreds of thousands of documents. second, i second those who have called for greater openness.

there are without a doubt many things are classified that should not be and we have a problem i think with out of control expansion of what are being deemed secrets and for reasons that are not legitimate in terms of somebody wanting to do a little cya instead of protecting the interest of the united states. finally, we want to make sure that we are not suppressing information that should be made public. nonetheless, it causes great concern to me than any outside organization would be put in the position of being the arbiter of what among hundreds of thousands of documents should be deemed secret and therefore not put up on the internet and what should not. they don't have the professional ability to do that.

they don't know the far reaching consequences that this will have on people's lives or on the national interest of this country, nor do i get the impression the leaders of this organization indeed care about what are the national interests of the united states, so we have to address this first and foremost but figuring out how to safeguard the things that are truly secret and release the is ourselves that we should be making public and should be disclosing, so i guess first my question to go to mr. wainstein first, but please call anybody else to join in, in terms of talking about how we change the classification process, what can we in the congress to legislate for? it seems to me this is primarily a function of the executive branch, but it very much concerns me that the executive branch has abused its power and we need to change it, but

without some standard measure of how these things are classified. would you recommend the con chris do to reassert our authority and get the classification process brought under control? >> i appreciate the question, sir. i guess as you pointed out, the first thing to keep in mind is classification is within the prerogative of the expected, so folks in the executive branch to decide what is classified and what shouldn't be and tall sort of baliles down to the executives responsibility to protect national security. that doesn't mean, however, congress doesn't have a role. in fact i think we were talking about this on the brigety there is a silver lining to this issue coming out now about wikileaks that there might be some changes to the espionage act and not only does it i think heighten people's awareness of this tension between security and

openness but also think it might heighten people's awareness of the fact there is over classification and congress i think can play an important role in emphasizing when portended is to the executive branch that over classification be gotten under control especially if the executive branch wants some legislation out of congress as it relates to the espionage act but say. the president, as i say one of his act was early on in the spring last year was to set up a task force and issue an executive order covering over classification. so my sense is there is a sincere effort under way. keep in mind however that while there are i think -- too let me interrupt you because i have a limited amount of time and people i want to comment but if you have specific ideas about things the congress ought to do in this regard, we welcome them and i would ask the other member of the panel. >> i don't accept this notion that this is in the exit of branch as a prerogative.

seems to me the way in which the classification -- >> i agree that it's not but i am looking for practical ways to solve the problem -- >> do you have a suggestion for us to take legislative flee or through appropriations or whatever that would help us reassert our authority in this area we are interested. that is on a bipartisan basis. >> i would say for when the legislation that provided, for instance, the mo document information may be classified as an objection is made that the harm of disclosure out ways -- the heart of disclosure outweighs the benefits of disclosure as a statutory matter that will then say that no one could be punished for revealing information that is misclassify under that standard. we would go a long way to clarify what the classification standards are. >> what if they're seems to be some willful less and a deliberate intention to misclassify information that should be classified? >> make it a crime.

>> i have to tactical things better in the amendment to the bill. first, i have already stated which is to make sure we distinguish among the various offenses said the mishandling of properly classified information is included, therefore it is a distinguishing between the various forms of conduct so congress is basically telling the executive branch you're not going to be able to prosecute people at the same level for the very best kind of offenses but the second is to do with the case law often says, be clear that there can be a defense given the intent of the potential criminal defendant for raising the fact something was improperly classified in the first instance. >> anyone else? >> just a couple suggestions, congressman. one is years ago i would say the u.s. government was declassifying anything it knows the soviets know. to keep it from the american people and they knew a lot about, with the soviets know.

but i guess my point that one of the major players in the whole classification issue is the congress itself, and when the congress allows itself to be stratified between the intelligence committees getting classified information and no one else in congress getting it that is the way the executive branch co-op's the congressional role and increases the arbor to reclassification discretion of the executive branch so that is something to look into the end of the second is that we should look back at what has been disclosed that was classified to educate ourselves to be able to more precisely respond to your question because it is so many things have been declassified leader or leaked that were observed to the classified and that is a good tutorial to develop the kind of nuance that your question and false. >> thank you.

mr. blanton? >> the congress has an extraordinary track record pushing back against over classification. the greatest success the last 15 years as the nazi war crimes at the post of millions of pages of documents that should not have been kept secret that showed how we haulier and sheltered nazis in our own country. congress ordered that and built the agency working group that ran. you should apply the same standards that were in that statute to all historical records anything more than 25-years-old which under the executive order is supposed to be treated differently. apply the nazi process, but the working group with some power behind it to make it work. you could break loose the huge backlog of those old secrets as one of the biggest credibility problems and the current system. you could make a huge difference and in power the classification board that has appointees from the executive of the legislative branch to not just make recommendations for changing the system but really even order the release to beat could provide new funding for the national declassification center which is

at the national archives just started in may. they hired a career cia employee to help oversee. their faith in backlogs of sufficient been outlawed for hundred years ago. the can't even begin to get their arms are not available oversight and i think it would help. and finally, to pick up on rauf meter's comment, currently the executive branch treats requests for information from congress only the chair of the committees are treated as constitutional requests for information. if you are a member, not the chair your request is treated as if it were an information request. so join the line on the and in. i'm sorry. you've got a high your constitutional duty than i do and you ought to have the right as all members of the congress ought to be treated the way the chair of the committee are treated today. >> really quickly i would just point to one more example of congress taking an active role in this area which is the atomic energy act of 1954. you know, we are not talking

about historical records, we are talking about i daresay what we would all agree are our important national security secrets and congress didn't leave it to the executive congress provided details statutory procedures to be followed and indeed to be punished in the breach. >> these are all very good. one other point, the allegation has been made and i again i don't know the truth of the wikileaks is an organization that has not only released information on the internet that has engaged in the solicitation, the facilitation, maybe even the payment of paper or affirmation or pay to facilitate the acquisition of information but to any of you have any thoughts on whether there is a need to change the law in this area or is there adequate law right now against what most people would agree would cross the line between reporting and espionage?

>> first of all there is a lot more we need to know, congressman. >> i know, but for example, obviously amazon, visa, mastercard with the denial of service in recent weeks, so wikileaks was pressured by the u.s. government. the u.s. government did not say cut off "the new york times" or "the washington post", and that is the tip of an iceberg. >> but it doesn't answer my question which it already exceeded the time but does anybody have the comment on whether or not we need to strengthen the law regarding the kind of things that were done or alleged to have been done by wikileaks to okwu disinformation or any other from the government and i would contrast, the acquirer from the corporation.

>> i don't know if wikileaks did try to pay for the information but if there were any complicity between wikileaks and the person who actually pulled the information out of the government then wikileaks could be charged as an acre or a better work conspirator of the leaked. that person then wikileaks wouldn't enjoy whatever additional first amendment protections they have as a news organization rather the are charged as a conspirator or were the person that is of the leak. it would be easy to meet because there would be charged like the wikileaks and those charged by the alumni demonstration as was problematic because it isn't -- they are not going to be charged as a press organization, rather as someone who is composite -- >> that is the current law, correct? >> i agree, all i would add as it is not be as problematic would certainly be as unprecedented. tsp not act hasn't been used to

my knowledge to prosecute someone on a liability. co-conspirator etc. it's been supported i do think we would still wait on some of the issues you heard us discard this morning about applying the integrated statute to the small full fury. >> thank you, mr. chairman. >> thank you very much. we now turn to the gentleman from virginia, the chairman of the subcommittee on crime, bobby scott. >> thank you, mr. chairman and for calling this hearing. you know, one of the problems in pressing criminal law is in of the challenges if we pass a criminal law we are expected to be challenged on the constitutionality that would have to be consistent with the president and we of the pentagon papers the alerts us to the fact that anything we do in this area is going to be problematic. the law also has to be precise.

it can't be subjective after the fact, well in this case i think it is bad enough to prosecute the conduct to be prescribed it has to be precise. i am inclined to think what happened in the wikileaks situation ought to be eagle, but i think we have a consensus on the panel if nothing else that we ought to take our time and get this thing done right. let me just ask, i am going to talk about a couple of issues and ask everybody to respond to them one of which my colleague from virginia just talked about and that this should it matter what you helped to obtain the information or you got it slipped under the door you don't have anything to do with it in terms of your publication, and does it matter if you knew full well that it was classified and should make a difference that it should or should not have been classified? second, we have heard a lot

about the intent to harm or whether that did harm. that is going to have a problem with practicality and criminal law because whether or not the leak harm, if you did something to sell the post the iraq war mike and we started the debate there would be a lot of people that would conclude you did more good than harm although obviously if you lose that the date, you have committed a crime. and whether or not even though it did harm you didn't intend for it to harm. should that be a defense? the fact you rejected some of it but not all of it, should that help you or not? and part of this i don't know from practicality point of view, you are up there and have been arrested for publishing the material and do you get an opportunity to debate the iraq war met before a jury if you in the the date your not guilty and if you lose the the date your guilty? if you are lucky enough to be in one jurisdiction where they hate

the iraqi war might your in good shape for to the material you get stuck in another jurisdiction you're in deep trouble, crime, different jurisdictions. from just a practicality point of view, can you talk about some of these conditions and just yield the panel the balance of my time. .. press people, cajole, encourage, types of people in the government all the time. they are actively engaged in

trying to find out that which the government does not want to disclose. they are involved. they are not taken out the national enquirer on a thousand dollars and paying for an information. we think that is a clearer line of the first amendment. i'm not sure that it is, but where do you draw the line then when journalists doing her or his job very well and is figuring out ways to cajole somebody to say that which they are trying not to? theoretically i think yes but i think practically no. i think the issue of whether the media or the third party or the protected entity knows something is classified, the present law doesn't make the disclosure of classified information. it makes disclosure of what is called information relating to the national defense, and we are now seeing with classified, overclassification that the fact it is classified may give a presumption that there is a potential danger in its release but it is the beginning of the

conversation. and i don't think that is going to be meaningful distinction today when you redraw this law some day. it may be one that again is congressman goodlatte was saying how we prevent overclassification by making sure there's a defense for example that if something is improperly classified? therefore knowledge that it is classified as not really going to be dispositive. the intent is very difficult, so you are right. there should never be a law that says whether not the outcome was what you intended. that that is, intended to submarine the policy of iraq, consequently i did what i did and i didn't submarine the policy or enriches but it was better to do that not do. it has to be at the front and. it has to be in 10. that as you know the same in every criminal case, trying to define the defendants intend by whatever their direct circumstantial evidence are is going to be the challenge even in a classification kind of a case. so again somebody saying to the government gee, i reject.

somebody who makes them public. somebody who does things overly as somebody who appears to wear a disguise and is dealing in drop boxes in the middle of the park. you can tell the difference between somebody's intended by their behavior and finally, he raised a really excellent last point. they are all excellent but this one as a trial lawyer, when you are defining somebody's intent and you are saying i felt like they need to expose the fact that there were no weapons of mass destruction, that plays differently to a jury in alexandria virginia dynamite in the washington d.c., then it might in some other place in the country and that is why among other reasons at least the presumption in some of these cases are brought in the district of virginia or at least the prosecutors believe they have a more sympathetic jury. >> if i could just that briefly congressman you also raced, putting the jury in the decision of deciding whether something is rightly classified or not and it is important to keep in mind that if congress were to add an

improper classification defense into any revision of the law, you are still putting in an incredibly high burden on the few of the defendants are but taken quite a substantial risks if you really think at the end of the day, his freedom whether he is going to go to jail for 25, 30 years depends on his ability to commence the jury that something was wrong to classify. i think that is not a legal argument but that puts a pretty heavy some on the scale of why that would not open the door to massive leaks and individuals who thought things were wrongly classified. those are pretty severe consequences to take such a long shot on. >> mr. chairman, mr. congressman i was just add to what my colleagues have said, but a number of them have suggested we should alter the law to have an intent to injure and this is one of your points. i think there is reason to believe that which dad and -- would open the floodgates for

leakers. there are many saudi terry reasons for leaking, but there could be considerable disagreement about what actually is salutary. the current law, which has reason to believe could injure the united states seems to capture behavior that they would really like to keep from occurring, keep genuine secrets secret. >> what burden of proof would you have that somebody also believe that this was good for the country although some juries will conclude it is bad for the country and others -- i mean you have to prove, does the prosecution have to prove beyond a reasonable doubt that he did not believe that what he was doing was the right thing? >> i am not sure of the answer to that. i think it is important here again to distinguish --. >> are we talking about a good faith exception leaking? >> i think it is important to say between the leaker and the publisher. the leaker can be regulated. much more aggressively and there i think it is sufficient to say

that knowing disclosure of classified information is properly classified. >> congressman one more thing on your last point. you know the present statute gleaned by the courts to the attentional requirements to show mr. schoenfeld's pointed out that you had a belief that it could injure, whether that is good enough. let me tell you why it is not good enough. what is could injure mean? what if you believed it was a 1% chance that it could injure and that 99% chance that it wouldn't? wherein that slope to the somebody become a felon subject to 20 years in jail and that is difficult, especially difficult in a first amendment context. >> congressman i think the short answer is you don't write one statute, you write three and that you have one statute that is focused at espionage.

you have one statute that is focused on leaking as mike call it professor points out. you can impose higher burdens -- make you can hold government placed a higher standard and you have a third statute that deals with private citizens with no intent to harm the national security of the united states. that is the incredibly tricky one to write, but no matter how it is written, i think having those categories separated out what have a substantial improvement in recognizing the burden should be different in those three cases. to be such a positive development compared to the status quo that really almost anything would be beneficial. >> there is great benefit in having a very rigorous and narrow statute on publication of information. that puts pressure on the government to keep the secret in the first place. so they can't punish wikileaks because they don't have direct intent. they know that and they are

serious about their secrecy. they will then take what is necessary to keep the information secret. if they can do that they will get lazy and sloppy on the results. >> thank you very much, bobby scott, for that interesting exchange. i turn now to the distinguished gentleman from iowa, steve king. >> thank you pitcher chairman. i did think witnesses. an outstanding lineup of witnesses here and i would turn my first question to mr. lowell. it caught my attention in speaking about intent, and in this discussion we have had in this dialogue about intent i would be curious as to if you had separate intent, and they be three almost simultaneous identical acts by different

entities with different intent, are they still guilty of the same crime? speak to put pressure on the bone congressman king, in my brief introductory remarks today i said the statute, i was speaking about section 793 specifically, could apply again first to the government employee who has the confidentiality agreement and then said something or did something that he or she should not offend any of the person who he is doing it to. could be a foreign-policy want. to be somebody else and then you can have the reporter who sa said overheard the published article in there all responsible for releasing the exact same information and they may be releasing it in different ways. ironically the last here is going to expose its the most amount of people. the first person in the confidentiality agreement is disclosing it to the least number of people and yet it is easier to prosecute the first as professor stone and others said they should be, then the last. so let's take that intent

against the last three. as to the government employee, he or she knows that based on the confidentiality agreement whatever he or she does that it is not supposed to occur in there are very few excuses to go outside of channels to do it. if you protect whistleblowers and putting that aside the intent requirement is easier to prove. to the person is not in the confidentiality agreement and is actively engaged in the exchange as were the defendants in the so-called aipac case, that was very problematic because on monday white house officials are state department officials brought the men did discuss foreign-policy that they wanted them to no end in three days later somebody had a different level called upon the phone and talk about the same policy that was the subject of their indictment. their intent there for credit been proved by showing what was legal on monday should not be illegal on wednesday and then finally when you get to the point of the media, that is for all the comments of the intent requirement depending on their complicity in the original leaks will make a big difference.

so you can take the fay can have three different standards of intent and still survive i think under constitutional scheme. >> mr. wainstein, your comments on that. >> congressman king i actually agree with the idea of having a tripartite approach. steve vladeck described i think narrowing the provision for each of these different categories is going to make a more targeted legislation. >> then let me take this to, the injury to the united states. what does that mean and how can that be proven? >> that is also another sticking point in the whole wikileaks situation. i think you heard a little bit of that today. the question okay how damaging was that? may be back in the first charge that came out about dod, the dod documents about afghanistan, there were troop movements and alike. a lot of that stuff ended up getting taken out later on.

is obviously sliding scale and when you are dealing with the first amendment 1 of the justifications especially if you are looking to prosecute a news organization, and organizations sort of in the shoes of a news outlet, you have to look at whether you are justifying the prosecution and the encouragement on their press activities in order to address arms of the nation. that is one of the big issues that the partners looking at right now going throughout the things that have been released to these wikileaks disclosures and seeing what the identifiable pieces of damaging information are in there. >> i turned to mr. schoenfeld and you believe the espionage act should apply to a foreign defendant that is operating outside of the united united st? >> i think it could and should be applied and i think that what he has done with wikileaks has done is to certainly endanger, as a number of ranking members

that member sets that come endanger our forces and the danger allied forces and civilians in afghanistan and iraq. the idea that the united states has no recourse in the face of this is unacceptable, and i think looking at the law, whoever discloses. >> while you have the microphone and for the record again, and appreciate if you could just summarize those five points that you made in the closing part of your opening statement. >> if i might take the liberty of looking at them. more attention to declassification. attention to giving legitimate whistleblowers viable avenues other than the media to which they can turn. reestablishing deterrence of leakers and the government so that those who leak have reason to fear they will be prosecuted. bringing down the weight of public opinion and canst leakers certainly and against those who

publish vital secrets, not just ordinary kinds of secrets or the daily affairs of american journalism. and some extraordinary cases, prosecution of media outlets that publish secrets which endanger the public. i would say in a classic case as we mentioned here is the "chicago tribune" case. but there are other cases that are approach that line in more recent years. the pentagon papers case, the documents that daniels burt turned over to "the new york times" where historical in nature. there was not a single but in that collection that was less than three years old. some of the material that was published by the "new york times" in the last years and fined 11 is an operational ongoing intelligence program like a monitoring program. i read the new york city subway and so do millions of others and there are people out there determined to bomb those. this is a program designed to stop those people that we compromise. the seriousness of that and the responsibility of journalism in

some cases as been extraordinary in this period, much much different than the kinds of things the times published in 1971. >> kenya says -- speculate on the motive for releasing information that is classified? >> there were two substantial leaks and that period. the first was the nsa wireless warned program and at the time they had an argument that this was a violation of the fisa act and there is legitimate debate about that. they believed that i think they performed a public service. we come to this swift program. they been warned by ranking officials, democrats, republicans and lee hamilton one of the cochairman of the 9/11 commission not to publish this material and they would have. i don't think they have offered a very convincing justification for doing so. one of the reporters, eric lichtblau said the story was above all else and this is a quote an interesting yarn, but follows. for such a person with such gravity i think one can't

imagine any more trivial rationale. >> the that answers is selling newspapers. my clock ran out a while back but i appreciate your testimony and i yield back. >> i am pleased to recognize the distinguished gentlelady from houston, texas, a very active member of the committee, sheila jackson-lee. >> mr. chairman let me thank you very much and i don't want to be prisms as to suggest that this may be the last hearing of the subject, but because i know that this committee works very long hours into the night going to the session but let me thank you very much. for your astuteness in recognizing the importance of this hearing. for those of us who are in a quandary if you will. i will. i sit on the homeland security committee and spending many hours and classified meetings,

in the cryptic if you will, listening to the array of threats against this country and frankly around the world. but i may also, or it comes to mind that if you become too restrictive and you have a law that is an ineffective in the espionage law, you also impact what can be the modern day, if you will, whistleblower. and another has been a distinction made with the pentagon papers, sort of an after-the-fact report as opposed to these documents that are current and in place. so, i would like you gentlemen to help me with a quandary that i am and to limit information, limit the potential effectiveness of government. but on the other hand, i don't

know whether or not we had a hearing mr. chairman and i am sure we did. my memory fails me but i remember distinctly as sitting vice president, blowing the cover of an active-duty cia agent and it was interesting to hear the response in that instance of this person whose cover was blown and as sitting vice president who thought he was completely right for either didn't minute or had someone else unfortunately be the fall guy for it. but i think in the g. shared committee is important to really understand the law. there is some dispute. the wikileaks owner, leader, in the case that they did right the london ambassador and sought to have certain information redacted and no one responded but there is a november 27 letter from the state department

saying don't release anything. abbe it is good to see you again. help me with that, because there was an effort made. i understand that the difficulty of the espionage law is knowing that you are disclosing classified information. doesn't have any provision for someone who tried to work with the appropriate person, because i guess i see a difference of opinion. i try to work with you. you did not want to work with me. what is the culpability? i'm going to yield to you first and i just want to talk about the law and how does that relate to that specific action? >> great to see you congresswoman again. let's distinguish where the law isn't how it applies versus what people say it can be approved -- i can prove. the elements you are addressing goes to the following issues.

when somebody is accused of violating 793 or 798 under the present espionage act if they are government employee, we have discussed the fact that they don't have the same back-and-forth ability to show that they did not have a reason to believe that their conduct would injure the united states or benefit an adversary or a foreign country. so in the context that you are asking into one the committees addressing which for example might be the wikileaks case. >> outside of that sphere. >> the then the question is, the back-and-forth between julian assange to date and the other newspapers and government officials, here is what i have, what would harm, what would you like redacted, goes to something. where it goes to is when the government prosecute somebody in that position, that person, the government has to prove beyond reasonable doubt a certain

intent. the defendant in that situation will be able to raise that kind of conduct to show that the intent was not want that had the mind to reason to believe to injure but was quite the opposite, that he was doing his best, recognizing that he and others would say was with his first amendment duties to do what was right and also showing his intent was a good one. the problem is that this is subject to a prosecutor deciding, i'm still going to charge him and let a jury decide whether the intent was okay. and is one of the other member said the difference between trying a case in jurisdiction one versus jurisdiction to want something that is just called in tandem i hope that is responsive. >> notice and then i would like professor stone to take a stab at that and mr. lowell -- abbe and i worked together in the past and mention the first amendment rights. d. want to give me some sense of where that plays a role? >> sure.

again, i think the government's ability to regulate the activities of its own employees who have signed secrecy agreements is considerable and that is where the focus should be, on keeping that information secret if it really needs to be kept secret. once we move into the realm of public discourse, then we should be extremely careful and the first amendment demands that we be extremely careful. schoenfeld, the incident from world war ii was public information that revealed the fact that we were aware of a japanese secret code and we have been using that that is the way of advancing our own war. had that information been made available to the japanese, sick could have been given the fact that it was published, that would have been in fact a situation where there was a clear and imminent danger as opposed to grave harm to the united states so we would have lost a pivotal benefit in

fighting world war ii. and that seems to me the paradigm case where a situation, where knowing the disclosure of that sort of information can be subject to criminal prosecution. the key to that example is that it happens centric. nothing in the wikileaks comes close to that. is important to say that is a situation where you can go after published to our disseminators of information who are not such a relationship of government. when it does happen it merits -- but beyond that we should be focusing our attention on the situation of keeping information secret in the first place announcing government where secrecy is backed -- escap or crispy mr. schoenfeld you have a different perspective but i think both of us i think have the same goal. i'm a member of the homeland security commitment i don't fool around with potential terrorist threats and/or the new climate we live in but my quandary is,

if we freeze down on the wikileaks, we freeze down even on information that may help us in the war against terror, they think the professor makes a very definitive.. i am embarrassed that the materials are accessible. how do you respond to the idea? >> i agree with professor stone that they "chicago tribune" case is really of a different order of problem that they are there would have been the kind of immediate and irreparable harm and really does not flow from anything that appears in the wikileaks documents. but that is not to say that there is not significant harm from that release. i agree with you, we are all better informed now than we were two weeks ago, before those documents appeared about what our government does. there is no question there's a public in a fit that flows from that kind of leak.

but there is the damage done from particular documents themselves which we have only really began to understand. there are so many different kinds of ramifications from these documents but what also has happened is a single to the ability of the u.s. government to conduct its diplomacy in secret, which is a critical task for keeping the beast. if our foreign diplomats can't speak candidly to american government officials we are not going to be well-informed about what is going on abroad. >> well, my message then is first of all i wondered diplomats to speak candidly and i want their government to come into the world with 21st century technology so technology so that a young ella terry personnel, 23 years old, doesn't have the ability to hack into it. they will handle his case now don't think we are discussing that right now but we do have the burden and responsibility you are absolutely right. the candidness is appropriate. i understand the pundits have

indicated that we look good but we don't know what else is coming. we looks good because we were consistent in our cable to our basic policy. that puts a smile on my face but the point is that if lives are put in jeopardy and again i go back to the vice president that blew the cover of a cia agent, to me that is a direct threat on some individuals life. if liza been put in jeopardy we have a different, if if you will, framework to operate under but your message to me is that we now have to get more sophisticated in how we do. i see my team -- i -- time. can i just get the last two or three witnesses to comment? if you adjust quickly -- the dilemma, there was in korea and i think mr. lowell made it clear that someone's intent is in play here.

mr. vladeck? >> congressman the only thing i would and if you mentioned at the beginning of your questioning his people are going to focus on the person who is doing the leaking and focusing on the government employee. the other piece of this is the whistleblowing and whether the whistleblowing laws are adequate to provide opportunities to government employees who have come across wrongdoing to have remedies other than going to their local newspaper and with that in mind they think is worth noting that i believe last friday. >> the new appointed person. >> i do think that recognizing that is part of the conversation and that strengthening the federal whistleblower laws especially as they apply to the intelligence community could actually legally banned this conversation as well by reducing the number of occasions where governor employees will feel the need or the lack of other remedies when they come across information.

>> if you would. >> congresswoman i think that is very important caveat to what professor stone was saying that the government has a lot more power to regulate the employee benefits to regulate the media and i would add overclassification as gabriel stone -- schoenfeld said. decanted with the overclassification we can't really protect serious whistleblowing that i think the government is not on such solid ground on coming down hard on its own employees and regulating them and that more severe way that professor stone says is constitutional. >> mr. stone, thank you for your service to this nation. >> i think the point you earlier make that the disclosures by wikileaks can actually enhance our national security, the disclosures do damage. they do damage to government violations, to war crimes, to torture, to the kind of policies that inflame and expand the opposition to us by people who

never had any entity to us and we can all cite peter goss and gerald casey and others who basically pointed that out, that our presence in these countries if we are not careful provides fertile ground for more opposition and more risk to our national security. so in that sense, these leaks build up public opinion and congressional engagement to hold the government's feet to the fire as the government under the rule of law and under constitutional standards in its foreign and military policies. >> chairman, if you could just finish and that i will finish. >> thank you very much congresswoman. providing protections for people who see something wrong with american season want to disclose it and not only do we need to make sure we have sufficient laws to protect whistleblowers and prevent retaliation but also

procedures, user-friendly procedures in agencies so if i'm an agency and i do something corrupt a run and i want to raise it it up it is easy for me to do so. i don't have to worry about retaliation. that is important because obviously the laws and procedures are in place to make it easy and seamless to do that and there was no reason that person is to go to the press so in addition to looking at the loss in the over said the looks of the agencies especially the intelligence committee to ensure that a d.c. to the whistle without fear would be useful. >> thank you mr. chairman. this is to you mr. chairman. this is a bipartisan hearing about simply want to see maybe if we go to the next session in a bipartisan way we can look at whistleblower or as you well know that no fear act that needs to, that has to do with protecting government employees against whistleblower comments and i hope we will do that. thank you mr. chairman and i yield back. >> the chair recognizes the ranking member of the first

subcommittee of this committee, the gentleman from north carolina, howard coble. >> mr. chairman i want to commend the panelists for their durability today. mr. wainstein you mentioned enacting a provision to prohibit the classified information by government employees regardless to national security. what are the pros and cons of cop -- such a statute and do we run the risk of igniting more classification than currently exists in an effort to prevent dissemination of the unsavory but not necessarily damaging material? >> that is a very good questions around that actually harkens back to something that abbe lowell mentioned about how back in 2000 that statute was passed actually and then president clinton vetoed it in a statute

basically said if you are a government employee and you signed this nondisclosure and andy disclose classified information, then you are guilty. the pro-is that is very clean. you don't have to show damage. you don't have to get into this back-and-forth of wedded this was damaging to disclose secrets about the iraq war are good because the iraq war need to be examined more closely. it is just clear. universe possibility as a government employee to protect classified information. you willingly and knowingly disclosed, you are guilty. the con side of course is that as you pointed out there is so much information that is classified that it would be chilling to many government employees when they are going to talk to people that gee all it takes is one step over the line and i get into one iota of classification and i'm guilty. you know and if i intensely disclose that i can't talk about anything, so one of the cons is that it will end up, people will

be scared to talk to the press and people will be scared to talk to congress because they are worried they will trip over classified information it might have people who will be prosecuted for information which though classified as you pointed out may not really be all that sensitive and might be either a matter of mistaken classification or something which is embarrassing but not really. >> thank you for that, sir. mr. schoenfeld is it your belief that the first amendment confers on journalists an absolute right to publish classified information or government secrets? >> no, it is not anything from what i've heard on the panel there is some agreement with me that under some circumstances journals can be prosecuted under the espionage doctrine. into harken back to the "chicago tribune" case, we have a case where i think the espionage statutes would apply. the story came out that lost the

lives of tens of thousands of u.s. servicemen and prolonged the war, so the supreme court of course in the pentagon papers case, five of the nine justices i noted earlier did suggest that the case came to them not as a priority case but after-the-fact is an espionage act for prosecution or section 798 prosecution they would strongly consider holding a convention of the material at issue was material that the congress had indeed prescribed under those statutes. >> i got you. thank you sir. professor stone we touched on this but let me run it by you again. does wikileaks enjoy the same protections as traditional journalism organizations and in the internet age how do we distinguish between traditional media and the new media and does the law contemplates such distinction? >> i think realistically it is impossible to do that.

the supreme court itself in the first amendment has arias refused to define who is aggressive and in any event the speech clause as as been noted is an independent protection so although that may be frustrating i think there is a practical reality there is no way to distinguish wikileaks from "the new york times" or from a blogger. they are all part of the freedom of speech and the first amendment protection. now that doesn't mean that the conduct may not be treated differently depending upon what they actually do but i think in terms of the nature of the institution or individuals, as a practical matter that is not going to be a sustainable line of inquiry. >> thank you gentlemen for being with us today and i yield back mr. chairman. >> thank you mr. coble. i now turn to bill dave hunt, the distinguished gentleman from massachusetts. >> thank you mr. chairman and this has been a very informative discussion. we are talking about legislation

and that problems of drafting appropriate language and the issues of intent etc.. but i still go back to what i said. until congress and particularly members of this committee addressed the issue of the classification processes, we are operating in the dark. we don't understand the classification process. i wonder if anyone on the panel braley does in terms of the steps, who classifies? i have heard some of you use the term improper classification. who makes that decision? i have heard the term authorized leaks. what in the hell is an authorized leaks?

is that a leak that you know, someone in the administration can do, but we can't? what struck me again when i chair the oversight committee on foreign affairs was we would get material that was rejected, page after page after page after page,. all you new or all you saw was the number. and that of course the next day you would read in the newspapers, but i guess that was a good leak as opposed to a badly. so, i hope, and i would direct this to my colleague from iowa, i hope with the new congress that congress conducts a series of hearings where it demands an

explanation of the process itself. are we going to rely on bureaucrats, you know, at a lower level, to to do good reduction? who does all this? help me with the ministry. can anyone here? may be icu abbe nodding your head. give it a shot. >> i can't answer that question in a blanket fashion across all agencies in all parts of the department of defense and all places in the world but i can answer it based on the materials i have seen on the cases i have litigated and you are raising a point. so, in the aipac lobbyist case, by the time we were done and getting ready for trial there was no fewer then, i don't know, for 5000 pieces of paper that were in a classification mode at one level or another. as an executive order which has

criteria for why something is classified, very specific categories of the potential harm that the release of that document or information could cause. like every other thing you have been talking about today those aren't microscopic definitions in a mathematical way. they are subjected to begin with. one for example talks about interference with the nation's foreign policy or foreign relations, relations with a foreign country. >> what does that mean? >> then, the second question is who gets to decide, you ask. >> that is the key. >> and many agencies what you'll find it is not just the secretary or the deputy or the assistant secretary or its equivalent. is the lowest level of the person working on the subject subject everyday. >> that is my concern. that is my concern. i think that issue is the predicate for addressing the concerns that usa panel have address. you have got to begin their.

we really have to do a thorough review because i would testify in the next congress that as chair of that committee, i saw material that was classified that was absurd that it was classified and was just building up a backlog of classified information that everyone in this room today would concur ought to be in the public domain the concern that i have is not so much about wikileaks but about what we are not having access to any democracy. and again, i hope that in the future it is addressed, whether it is in this committee or any committee. may be a select committee is actually needed and people coming in who actually do the classification, not the secretary, not the head of the

agency but to hear it. i had occasion working with congressman longer where we had concern about information that was being disseminated from the fbi. it was very revealing in terms of how it was done. and i'm not saying it was the classification was done in good faith. but it clearly did not come, in my judgment, meet any kind of standard in terms of classification. that has got to be reviews. >> you have got a couple of great assets at your disposal for the next session. there is a terrific review board called the public -- headed by the head of the national office. howdy changed on the front and? every single classification

decision that a bureaucrat makes generates extreme cost to the taxpayer that goes on indefinitely until somebody like me ask you that document to get release. that is a terrible way to do business. should be automatic after a certain sunset on everyone every one of the secrets. there is a wonderful little office called the information security oversight office that audits the secrecy system. they are smart. that of the office is the guy who coined the term wiki mania that i've been using in my statement. call us and give us more resources. i think they have 29 people on this massive over classified security system and they need some help. they can guide you through how does the stamp get made. the last thing i would ask fisher chairman, we have done about four different postings that support the consensus on the committee of massive overclassification. congressman poe, and on it and agreed with congressman thale

hunt. this is a piece of declassified process one week apart in the first time they cut out the middle, blacked it out in the second time they cut out the top in the bottom. the slide them together and you've got the whole thing. the punchline is that was the same senior reviewer. we have these graphic -- and i hope we do something about it. >> who authorizes these by the way? >> there's that famous quote from james baker the former secretary of state under president george h. w. bush who said they'd ship of state is an unusual state. it is the only one that leaks from the top. and i think daniel schorr once, and with david gergen brought

into the white house jim baker said leaking at the high level, they need somebody to leak at the mid-level. >> you know what i find ironic of course is the umbrage that some will take about some leaks but i guess it is not their leaks. they were good leaks and bad i guess is the bottom line. >> mr. nader? >> congressman, part of this goes back to the integrity of the civil servant and protecting it and leading civil servants and people who work in the armed forces and the executive branch take their conscience to work and if you look at the civil service oath of office it is not to the cabinet secretary. is not to the president. it is to the highest moral standards. a lot of this idiocy and overclassification comes from the lack of internal self-confidence that they will have reasonable protection by civil servants who would say this is foolish to do this.

i will give you one example. 40 years ago one agency of the government wanted to get the u.s. navy the amount of water pollution coming out of naval bases. the navy denied the then agency dealing with water pollution. they did night the disclosure of the volume of sewage going into the ocean on the grounds that the chinese and the soviets could use that information in order to determine how many sailors were on the base. that is a level of foolishness that could have been net in the bud if we supported our civil servants and basically recognize that this is overall a struggle between individual conscience of people up against the organizational machine if we call bureaucracy. and we all we should bring back the civil service oath of office. very short, very compelling.

they'll have to take it. we should protect them in a future that can be implemented in their daily work. >> thank you very much. your additional time was granted at the leaves of steve king of iowa. we now turn to the distinguished gentleman from arizona, trent franks. >> thank you mr. chairman. i appreciate it. i appreciate all of you folks being here, challenging the subject this morning. i think it is obvious to me and perhaps to all of us that no human being regardless of their education or training is really confident to apply and are the full extent of the actual damage that a week like -- leak like wikileaks could cause. h. -- potential and determine damage and i think it would be completely hopeless endeavor so i i'm convinced obviously that

julian assange cannot possibly be able to project what the potential damage of what he did is all about. that is a significant point but in light of that obvious truth, i'm wondering if it is time perhaps for us to rewrite our statues to establish some sort of lower burden for the prosecutor when it comes to proving the likelihood that a leak could cause actual damage and the necessary level of intent under the statute itself. mr. schoenfeld you mentioned in your testimony that the ill effects of information leaks can sometimes take years to manifest and you mentioned pearl harbor in the book the american black chamber as an example which i think is a brilliant example, where the book disclosed certain things that perhaps could have prevented pearl harbor and i'm going to try to get you to expand on that a little bit, and you know our government i

understand actually considered prosecuting the author of the book but still like the prosecution and the public nature of the mike in light in japan even more than what the book did. so i'm hoping that you can describe what my kids banned by the outside observer to be the unforeseen consequences of the leaks through the book and if hypothetically the author of the american black chamber were to be tried criminally for disclosing intelligence information today what level do you think a prosecutor would be able to show in this case? i guess purposeful or malicious intent to aid in the bombing of pearl harbor would not be one of them. that would probably be a little too strong but what about perhaps a recklessness? i know it is difficult to show melissa's intent but yet the devastation it that was caused of pearl harbor and my last memory of the numbers in that war was 50 million dead was kind of the big deal, the whole war.

and so in light of this do you think we should reconsider the elements of our espionage statutes? i have given you a complicated question there. tell us about lack chamber. tell us how it all fits and how you think you would approach that today. >> thank you very much. that is a very interesting question. he was probably america's leading cryptographer in the 1920s. he was put out of his job after secretary of state stimson said gentlemen don't -- fell on hard times in the depression and wrote a book called the american black chamber, basically voted to make a pile of money. the full history of american code breaking efforts including our successes in the washington naval congress in 1921 where we broke the japanese diplomatic codes and we were able to have negotiations. in the book came out it was treated much like eric wicklow

regarding his own story and at times, and ingesting and highly entertaining is what an american newspaper said about it but in japan accosts it costs an absolute fear about the laxity with which their own government had treated them. is that the japanese government over the course of the 1930s to invest heavily in additional code security and they developed a purple machine which was really an breakable. one of the consequences was that it delayed -- it slow down the pace with which our code breaking effort could read japanese cables and we were somewhat behind when pearl harbor came along. we missed crucial signals that pearl harbor was the intended destination of the japanese attack. now, if you are if he were to be prosecuted today, it would he not a hard case because the intent provisions of protection

798 which govern communications intelligence are very clear. it is one of those unusual provisions of american law where the act itself is a crime. and so, there might be a constitutional challenge but the statute itself does not have a requirement. as for relaxing the espionage act, overall i am cautious about changing is that anyway. i think congress should move very slowly. white meat and it has real cost. tightening it has -- has other costs so i don't have an answer but i think hearings like this with attorneys and i'm not an attorney who has worked closely with the act, are very much in order. >> thank you. mr. chairman chairman my time is up that i really wanted to know i appreciate the response that i hope that kind of puts things in perspective here.

sometimes there is no way to possibly anticipate what certainly can cause in this case it really caused japan to rewrite and reassess their codes and potentially could have prevented pearl harbor. in the 911 world we live than it is a relevant consideration and i thank you is your chairman. >> thank you very much, but professor stone wanted to get one comment and about your question. >> thank you mr. chairman. i think it is very important not to get fixated on this question that does the speech cause some harm. one of the things the supreme court pick it up pretty quickly is that almost all speech causes harm. is not harmless and so they made a terrible mistake during world war i which is they took the position because criticism of the war would undermine the morale of the american people it might lead people to refuse to

accept induction into the military and that could be punished because it might have harm. what they figured out pretty quickly after that is that you can't prohibit speech that criticizes an ongoing war because it might have harm. speech does have harm and in the pentagon papers case although the court said there was not likely and grave harm, certainly we were revealing all sorts of confidential information about the past, with respect to our allies, that we made alliances that had been publicly disclosed before, that made more difficult for us to negotiate in the future. if the standard focuses on harm to draw the u.s. given up. >> thank you very much and we thank trent franks for raising this line of discussion. i turn now to my good friend, the chairman of the courts

subcommittee, hank johnson of georgia. >> thank you mr. chairman for holding this very important hearing. thank you panelist for burying through it. before i ask a few questions, i would like to respectfully remind my colleagues that the wikileaks organization and mr. gillian assange are publishers. now if they can be shown that they in some way aided and abetted in the perpetration or commission of a crime or if they were parties to a crime, then they could be subject to prosecution. buds, the justice department has yet to come forward with an indictment and, until and unless

an indictment is issued, and until there is a trial, or an indictment, then mr. assange is entitled to a presumption of innocence by law, and his guilt would have to be proved -- they would have to be proved beyond a reasonable doubt before that cloak of innocents, that presumption of innocence could be removed from him. so, first i would like to just settle us down and let us look at the situation through that lens. we do have constitutional rightt

to speak freely and a right to publish the first amendment. and i would also like to point out the fact that the all of the documents that were made available to wikileaks are not all classified. some are classified, but there have been -- there have been indications from secretary robert gates that the releases thus far have not significantly harmed overall u.s. interest. and a quote from secretary gates, it's as follows. the fact is government with the

united states because it is in their interests, not because they like us, not because they trust us and not because they think we they can keep secrets. and so while there is a public furor about the release of the documents and information contained therein, having been disclosed to the public, we must not get carried away in a fervor as to what has actually occurred. now, if these leaks, and i assume that they do under blind national security, and the ability of american diplomats to do their jobs, and american personnel who actually engage in

compromising this classified information, should be prosecuted. they should be prosecuted to the fullest extent of the law. but unless those criminal allegations are proven, let's be careful, and let's insist on that presumption of innocence. now, "the new york times" is also publishing this informatiot shutting down their web site or encouraging an international manhunt. and we cannot allow whatever outrage that we may have, whether it nodded it be justified or