right to freedom of the press. and, you know -- now, we have got to acknowledge that more than just the publishing of this material will -- this is actually a failure of the u.s. to protect its material. after all, it is a private first class who is alleged to have had access to this treasure trove of information and the ability to download it. primarily, it is our fault that this information was released and we need to -- and if there is a service, or if there is a positive twist on what has

occurred, it is that we have been made aware of a softness in our protection of our important information and therefore we now, because of public disclosure, we are now in a position to correct and make safer a more gail proved information. so, for that i would have to thank mr. assange for that public service.

new start treaty. the presiding officer: without objection, so ordered. mr. sessions: mr. president, as we begin consideration of the new start treaty, we must

understand that the proposal is not made in a vacuum. it is a part, in one sense, an important part of our nation's strategic policy. i have served as chairman, ranking member, and member of the strategic forces subcommittee of the armed services committee for 12 years in the senate. thus one of the matters -- these matters of nuclear policy and nuclear defense have been before uus so many times and i've had a front-row seat about it. deserves a just consideration in this senate after appropriate debate has stated this treaty is a critical part to his approach of strategic issues, repeatedly insisting that it is needed so

that the united states can set an example and show leadership in moving toward what he has often stated to be his goal, a nuclear-free world. so this treaty now comes at a time when our nation is the world's only nuclear power, but we have -- and we're the only nuclear power to have no production facility ongoing at this time. it will have to be reconstituted. it's been a sore spot for quite a number of years in this congress, but it has not happened. for over a decade the senate efforts to modernize our aging weapon stockpile, which our scientists have told us is getting to a point where it has to be fixed, have been blocked by house democrats mostly and republicans -- and some republicans there. we've gotten bills out of the senate to do this, but it has

failed in the house. it's been an article of faith on the left in america and abroad by the international left that our goal must be to eliminate all nuclear weapons from the world. president obama and his administration have often used that rhetoric. they just have. but our modernization capability hasn't been started and it's a troubling thing. as secretary gates, though, has said about modernization, we cannot continue at this rate. in 2008 i sponsored legislation to create a bipartisan commission of experienced statesmen to do a study of our nuclear posture. the legislation passed and the commission on the strategic posture of the united states did its work. it was headed by dr. william j. perry and dr. james r.

schlesinger, former defense secretaries of this country, democrat and republican. actually secretary schlesinger served in president carter's cabinet and president reagan's cabinet. but they were able to reach a consensus on a number of key issues. they concluded that we could reduce our nuclear stockpile more than the current numbers, but that -- quote -- "modernization is essential to the nonproliferation benefits derived from the extended deterrent." they said it was essential to have a modernization program. i know a lot of discussion has been ongoing about that. i do believe senator kyl has done an excellent job in raising this issue and the administration has responded positively in some regard. the commission also, nicely in -- in -- in a diplomatic

language deflected the administration's goal of zero nuclear weapons by saying -- quote -- "it's clear that the goal of zero nuclear weapons is extremely difficult to attain and would require a fundamental transformation of the world political order." close quote. so i think that's about as close as you come from a bipartisan commission expressing serious concern about this policy. meanwhile, china, russia, pakistan, india continue to expand their stockpiles while rogue, outlaw nations like north korea an iran suppose -- and iran posing great risk to world peace advance their nuclear weapons programs. we'll need to talk about this more as this debate goes forward, but it's quite clear that the greatest threat to

world peace and nuclear danger arises from the rogue nations and other nations that have less secure situations than the russians do. and while it -- it could be very beneficial to have a good treaty with the russians, this is not the core of the danger this nation faces today. we've had very little work, very little success getting the kind of robust support from china and russia that we should have with regard to north korea and iran. it's inexplicable to me why they would jeopardize their reputations as a positive force in the world to curry favor with the rogue nations like iran and north korea. but this administration has been unsuccessful in gaining the kind of support to ratchet up the

sanctions against those countries that could perhaps make a difference. and the russians, they're steadfast in their nuclear program. they have absolutely no intention of going to zero nuclear weapons. i had an opportunity to talk to some of their people, and -- and it was pretty clear to me that they thought it was outside the realm of good judgment to discuss going to zero nuclear weapons. they were never going to zero nuclear weapons. and they have a 10 to 1 advantage over the united states intact kal nuclear weapons -- tactical nuclear weapons, more maneuverable, and this treaty does nothing to deal with that situation. and the russians may make some changes in the future, perhaps, but i don't think they're going to make much on tactical nuclear

weapons. it's a critical part of their defense strategy. it's a critical part of the their defense strategy. so russia, we understand, is willing and really has plans at this time to reduce their strategic nuclear stockpile, what this treaty deals with, not the tactical weapons, and that is because it represents a necessary economic move for them. i think, frankly, they don't see the united states or europe as a -- the kind of strategic threat that it used to be and they're willing to pull down those numbers. and it's a good thing, and we should celebrate what gains we can obtain. some close observers believe this treaty can you tails the united states -- curtails the united states programs, while not curtailing modernization

programs an systems they want to advance. in short the russians seem to have negotiated more effectively than the united states in this treaty. that's my observation. we wanted it too desperately. i warned our negotiators that they were too committed, to desperate to get this treaty, would make it -- difficult -- it would make more difficult their negotiations with the russians. i think that has proven to be true. so let me be plain about my overall concerns. first, the idea that it should be the goal of this country to move toward the total elimination of nuclear weapons is not just a fantasy or wild or some harmless vision. i think it's dangerous. i really thinks dangerous. it can only raise questions about the quality of the judgment that lies behind our strategic policy.

thus, the question arises, is the fierce determination of this administration to get a treaty really a part of their stated goal of moving to zero nuclear weapons and setting an example for the world? the united states of america under whose nuclear umbrella presides a host of free and prosperous nations no longer reliable as a nuclear power? and we know many of the nations that are part of our nuclear umbrella are worried about our nuclear policy. and i can understand that. how far, how low does this world leadership take us? how few weapons should we go to? down from 1,500 as this treaty would have us and that might be a sustainable number, to 1,000

or 500? well, not 500, somebody would say. i would note that jim hoblum writing in "the washington post," december 10, declares that the treaty fails in his view because the numbers are not low enough. he says -- quote -- "500 or fewer -- or fewer" close quote would be sufficient. well, will this example of reducing weapons cause our nations to follow our good example? i think not. if iran and north korea risk their security and their financial futures on building a nuclear arsenal today, will our example cause them to stop? i think not. rather i must conclude it will embolden them and could even embolden others as our weapon numbers fall lower and lower, these rogue nations can begin to see clearly their way to being a

peer nuclear competitor to what is now the world's greatest military power. why would we want to encourage them in that fashion? i think it's a risky goal. thus to the extent that the treaty is an effort to advance the stated goals of this administration a nuclear-free world, the treaty will be counterproductive and dangerous, i think. if that's what it's about, it's counterproductive. it's going to enhance and encourage other nations to have nuclear weapons and any nuclear -- any country that's advanced under our nuclear umbrella who does not now have nuclear weapons may well decide they got to have their own further proliferating nuclear weapons. at the halifax international security forum a few weeks ago, supported by the german marshall fund, under secretary of defense for policy repeated the

administration's goal of zero nuclear weapons and further stated it's a vision, it's an aspiration, and she noted while she act nodged, it may not happen in our lifetimes. -- she acknowledged, it may not happen in our lifetimes. i can tell you it's not happening in our lifetimes with a high degree of certainty. the name of the panel, by the way, had a little bit of an irony to it. it was a world without nukes. really? good question. so some of my democratic colleagues may say these statements about no nukes, they're just rhetoric, you have to say those things to keep the president's political left in line, the president is not really serious about it, it's not a real goal of his. well, i don't know. american leaders usually mean what they say.

he hasn't renounced the policy. the secretary was repeating it just a few weeks ago at an international conference. i have got to say a lot of people weren't too impressed with that policy, frankly, from our allies around the world. if the president is not telling us prattly what his philosophy is, these words don't mean anything. he is just throwing out astonishing visions about what he would like to happen. a lamb lying down with the lion. what else is he not serious about as we consider this treaty? if one isn't accurate about matters as significant as nuclear weapons, we have a grave problem of leadership in this country. does it mean that the president favors modernization of our stockpile? he says so, but in essence, he's

conditioned that support on passing of the treaty when we need to modernize the stockpile whether or not we have a treaty. so what kind of -- does this give me confidence that the president is clear-headed about our nuclear policy when the secretary of defense and former secretary of defense and the laboratory directors and the top military people went without exception, said we need to modernize our nuclear forces, and he is only going to support it if this congress ratifies the treaty? i don't feel good about that. a lot of people have opposed modernization. they think modernization is a step toward more nuclear weapons in their mind, and we ought to eliminate nuclear weapons, not have more, and that's, frankly, where the president's political ancestry is. it's where he came from politically. forgive me if i'm not real

comfortable about this. does the president mean it when he says he's not compromised and will not compromise our ability to deploy strategic missile defense systems in europe? there's a rub here. some in this post-modern world may not have the slightest concerns that our commander in chief's words are ambiguous on matters like this. they don't believe much in the authority of words anyway. but call me old-fashioned, i think words are important. words, these words that i'm hearing, worry me. so these views that really are fantastical place a cloud of unreality over this entire process. secondly, i'm not persuaded that this administration has not retreated on nuclear missile defense to a significant degree. i'm not persuaded that that has not occurred. for example, the latest

wikileaks reveal that the administration negotiated away president bush's plan for a forward missile defense site in poland in exchange for the russian cooperation. "the new york times" summarized these cables on november 29 -- "throughout 2009, the cables show the russians vehemently objected to american plans for a ballistic missile defense site, in poland and the czech republic. in talks with the united states, the russians insisted that there would be no cooperation on other issues until the european site was scrapped. six weeks later, mr. obama gave the russians what they wanted. he abruptly replaced the european site with a ship-borne system." that was a quote from the "new

york times." so that makes me a bit nervous. we had a plan to place that in europe. two-state system instead of the -- two-stage system instead of the three-stage system we have in the united states. give us redundant coverage from an iranian attack. and the russians didn't like it. they didn't want a uranium system on their border, even though at best it would have only minimum protection against the massive number of missiles they have. they were only going to put ten i think in poland. but they objected, they objected. the bush administration stood firm. they got the last treaty by standing firm. indeed, mr. former secretary of defense for policy doug feith wrote an article in the -- one of the major newspapers, an op-ed, i think "the wall street journal," saying that they said no, eventually it will -- the russians agreed to sign. and he raised an important

issue. i just want to share this with my colleagues who i know believe so deeply, we have to have this treaty or all kind of bad things will happen. mr. feith told the russians we don't have to have a treaty with you. we don't have a treaty with other nations who have nuclear weapons. if it's not a good treaty, we're not going to agree to it. eventually, the russians agreed, and he says the very same insistences, positions that they asserted at that time against the bush administration, that they rejected were -- were demands acquiesced in by this administration in this treaty. so forgive me if i'm a bit dubious about how wonderful this treaty is. so i asked the state department about those cables, and we haven't heard any information on

it. so there are many, many more things we need to talk about with regard to the treaty and the overall strategic situation that we find ourselves in. are we making the world safer? i'm worried that we're not. i'm worried that this approach may not make us safer. i'm well aware that some of our best allies are worried now about the constancy of the united states, the commitment of the united states to defense even if, god forbid, nuclear defense of our world allies, that we won't follow through, and so they may have to have their own nuclear weapons. so, mr. president, i know there's a good bit more to be -- to discuss in this debate. i encourage this body to be

deliberative in their consideration of the treaty. i am not happy that it's being shoved at this point in time. i was so hopeful and expectant that we would be able to have a -- to give a firm date to start to negotiate -- the debate early next year and we could have a robust debate not only about the treaty but how it fits into our overall nuclear strategic posture. what are we going to do about missile defense? what are we going to do about updating our stockpile? and what about our triad and delivery systems? what are we going to do about those? and now it's being jammed in here. i understand why. they have more votes they think now, and the likelihood of it pass something greater now. i think it has a realistic chance of passing next year, but more significantly, i think the administration would like to avoid a full debate about

strategic nuclear policy of the united states, and if that's successful, then i think the american people will be the losers, as will the security of the united states. i thank the chair and would yield the floor. mr. kerry: mr. president? the presiding officer: mr. majority manager. mr. kerry: mr. president, i want to ask the senator before he leaves, it's now 1:30 in the afternoon and we have yet to have one amendment presented to us. i recognize there is a value to having some of these comments help frame it, but it also can be done in the context of a specific amendment. i would ask the senator if he has an amendment that he's prepared to offer that could help us move forward. mr. sessions: it's difficult to amend the treaty, as the senator knows, once it's been signed. there are things that can be done. i think first and foremost, we need to ask ourselves is this a good thing for the country? will it advance our interests? i believe we need a pretty big

discussion about that and where we stand. i know -- i know senator kerry has been supportive of modernization -- i believe you have, at least as this treaty has moved forward if not in the past, and we really need to do that, so -- but i'm a bit uneasy that the president basically is saying you don't pass my treaty, we're not going to modernize. i think modernization is critical for the security of our country. and i also want to know how it fits into our overall strategic policy. so that's kind of my biggest concern, senator kerry. i don't know that the numbers that the treaty takes us to, the reduced numbers themselves are dangerous. some people say they think it's a bit dangerous, but most experts don't think so, and i'm not inclined to oppose the treaty on whether it's 1550 or

1700 or 1800. but if it's part of a trend to take our numbers down further, perhaps you saw mr. hoeingland's article saying it ought to be 500 or lower. that would make me very concerned and i think would cause a serious -- serious ramifications internationally. would you agree? if this treaty were to be for, say, 500, it would definitely create some concern and angst around the world. mr. kerry: mr. president, let me say to my friend -- and i appreciate his desire to try to be thoughtful about what the numbers are and about the treaty as a whole. we appreciate that. a couple of comments i want to make. number one, the administration is not linking modernization to the treaty. this is -- i think it's clear now to senator kyl.

i read a letter before the senator started speaking from the directors of the three laboratories, expressing their satisfaction and gratitude with the levels of funding that have been put in there, and i acknowledged that senator kyl was correct in finding some inadequacies in the original funding levels and the administration in good faith has made up for those. what happened over in the house happened over in the house. it was not instigated by the administration. in fact, the administration has countered that and made it clear that modernization is necessary as a matter of modernizing, in order to keep our arsenal viable. the second point i'd like to make to the senator, i hope the senator does not vote against this treaty because he thinks somehow this is a step to some irresponsible, slippery slide that takes us to -- quote -- "

zero nuclear weapons" without all of the other things that very, very intelligent, thoughtful statesmen have talked about in the context of -- of less nuclear weapons. but i should point out to the senator, dr. henry kissinger, who has -- is an advocate for this concept not as something we're going to do tomorrow or in the next, you know, ten years perhaps, 20 years, 30 years, but as an organizing principle, as a way of beginning to think differently about how we resolve conflicts, because whatever you do that moves you towards a world of less nuclear weapons, because we have to get 67 votes here, clearly would build the kind of consensus that says we're doing things that make us safer. and so it would have to be accompanied by other countries,

transparency, by other countries taking part. it would also, i would say to the senator, almost necessarily have to accompany -- be accompanied by something that today is way out of reach, which is a kind of restraint on conventional weapon growth and involvement in the way in which we try and resolve conflicts between countries. but it's no accident that george schulze, bill perry, sam nunn, just to mention a few others, both of the 2008 presidential nominees, senator mccain and president obama, have all agreed that this is a principle worth trying to move towards. and one thing is for certain, the road to a reduced number of nuclear weapons in the world, which would reduce the amount of fissionable material potentially available to terrorists

certainly doesn't pass through a nuclear tehran. and so, if we're going to have our bona fides to be able to leverage north korea and leverage iran, we need to at least prove that we can put together a bilateral agreement between the two countries that have 90% of the world's nuclear weapons. so i would hope my colleague would not view this, given all of the sign-offs that have accompanied it from our national security establishment, from our joint chiefs of staff, the military leaders, the national intelligence community, from our laboratory directors, our strategic commanders, all of them have agreed, 1,550, the current number of launchers we have, et cetera, this is going to permit the united states to maintain the advantages that we feel we have today. and i would hope my colleague would look hard so* at how henry kissinger and george shultz and

bill perry have framed this concept of moving in that direction as an organizing principle. i don't expect it in my lifetime. i doubt the senator does. but i wouldn't vote against this treaty that provides a window into what russians are doing, provides verification, reduces the threat, creates stability. i would link the two and i would hoept senator does not. -- and i would hope the senator does not. mr. sessions: i believe earlier today you made the point -- quote -- "make no mistake, we're not going to amend the treaty itself. we'll accept resolutions that don't kill the treaty. i think i understand that. i do assert, as we both know, amending the treaty is not something that is easily done. we've got to deal with whether or not we think the treaty is helpful. we can do some things to the amendment process to make it

more palatable and acceptable to people who have concerns, and i don't dispute that. but i do feel like that fundamentally this day ought to be discussing the overall strategic impact of the treaty. thank you, mr. president. mr. kerry: mr. president, i thank the senator, and i just say to him we have incorporated into the resolution of ratification some 13 different declarations, understandings, conditions. we certainly would welcome more if they are constructive and aren't duplicitous, because we've already addressed the missile defense issue, rail mobile issue, the verification issue. all of those have been beressed. lifted. the presiding officer: without objection, so ordered. mr. mccain: mr. president, we are discussion the new start treaty at this time, and i look

forward to continued debate and discussion on this vital and very important national security issue. i want to, however, remind my colleagues that, as within any other issue that relates to this treaty and the russians, that it can't be totally considered in a vacuum. because the events that have transpired in the last several years in russia should bring great concern and pause to all of us. to all of us. and so i'm going to speak today about the situation in russia today, and specifically the continued imprisonment of mikhail khodorkovsky and lebedev

and the decision of the judge which is likely to extend that imprisonment to december 27. if we needed any more reason to know what verdict is coming, this is it. the russian government seems to be trying to bury some inconvenient news by issuing it two days after christmas and after this body will probably be finished debating the possible ratification of a treaty with the russian federation. some may see this as evidence that the russian government is accommodating u.s. interests and desires. i would be more inclined to believe that these prisoners were set free. until that time i will continue to believe that when prime minister putin says khodorkovsky -- quote -- "should sit in jail, as he said yesterday," that this is exactly the verdict the russian court will deliver. the fact is, mr. president, the

political fix has been in for years on this case. mr. khodorkovsky built one of the most successful companies in the postsoviet russia. and while i'm under no illusions that some of these gains may have been ill gotten, the subsequent crimes committed against him by the russian state have exceeded the boundaries of human decency, equal and lawful justice and the god-given rights of man. i ask unanimous consent for an article in yahoo yesterday that said "russia's putin: card coul- khodorkovsky should sit in jail. i believe that a thief should sit in jail. with more than a tough of

sarcasm, the lawyer thanked putin for speaking his mind because it answers the question who, with what aims and what power is putting pressure on the court as the judge is deliberating." in 2003 when mr. khodorkovsky became outspoken about the russian government abuses of power, he was arbitrarily arrested and detained under political charges. his company was stolen from his by russian authorities and he was thrown in prison through a process that fell far short of the universal standards of due process. mr. khodorkovsky was held in those conditions for seven years, and when his sentence was drawing to a close, new charges were brought against him which were then even more blatantly political than the previous ones.

mr. khodorkovsky along with mr. lebedev were charged with stealing all of the oil of the company that had been so egregiously stolen from them. the trial that is now concluded; so what will happen next seems rather clear. after spending seven years in prison, mr. khodorkovsky will likely face many more, which i fear is tantamount to a death sentence. this case is a travesty of justice for one man, but it's also a revealing commentary on the nature of the russian government today. yesterday the senate voted to take up the new start treaty. to be sure, this treaty should be considered on its merits to our national security. but it is only reasonable to ask -- and i ask my colleagues this question -- if russian officials demonstrate such a blatant disregard for the rights and legal obligations owed to one of their own citizens, how

will they treat us and the legal obligations, be it this treaty or any other, that they owe to us? what's worse, the sad case of mikhail khodorkovsky now looks like one of more modest offenses of the corrupt officials ruling russia today. thrao*eubgd quote from an -- i'd like to quote from an article in the economist dated december 9, 2010, entitled frost at the core which i would like to ask unanimous consent to be entered into the record, mr. president. the presiding officer: without objection -- mr. mccain: mr. khodorkovsky, "the economist" writes, "mr. khodorkovsky is a symbol of the injustices perpetrated by corrupt bureaucrats and members of the security services who epitomize the nexus between power and wealth." the article goes on to describe the staggering scale of corruption in russia today -- and i quote -- "shortly before

his arrest, mr. khodorkovsky estimated state corruption at around $30 billion, or 10% of the country's gross domestic product. by 2005, the bribes market, according to indem, a think tank, had risen to $300 billion or 20% of g.d.p. as mr. khodorkovsky said in a recent interview, most of this was not the bribes paid to traffic police or doctors, but contracts awarded by bureaucrats to their affiliated companies. i go on to quote from "the economist." their wealth is dependent on their administrative power rather than property rights. the profits are often stashed away in foreign bank accounts or quickly spent on luxury property in european capitals or on their children's education in british private schools. unsurprisingly, surveys now show that the young would rather have

a job in the government or a state firm than in private business. over the past ten years the number of bureaucrats has gone up by 66%, from 527,000 to 878,000. and the cost of maintaining such a state machine has risen from 15% to 20% of g.d.p. other figures point out to the same conclusion as "the economist." in its annual index of perceptions of corruption, transparency international ranked russia 154th out of 178 countries perceived as more corrupt than pakistan, yemen and zimbabwe. the world bank considers 122 countries to be better places to do business than russia. one of those countries is georgia, which the world bank ranks as the 12th best country to do business. president medvedev speaks often

and at times eloquently about the need for russia to be governed by the rule of law. considering the likely outcome of mr. khodorkovsky's show trial, it's not surprising why president medvedev himself has lamented that his anticorruption campaign has produced, in his words -- quote -- "no results." russians who want better for their country and dare to challenge the corrupt bureaucrats who govern it are often targeted with impunity. one case that has garnered enormous attention around the world is that of sergei magnifky, who uncovered a theft of $230 million from the russian trerb rhode island because of his -- treasury. because of his relentless investigation, the russian interior ministry threw him in prison to silence him. he was deprived of clean water, left in a freezing cell for days

and denied medical care. after 358 days of this abbureaucracies sergei magifsky died. he was 37. not only did the russian government not hold anyone accountable for his death. several have actually received commendations. then there is the tragic case of russia's last remaining nonpartisan journalist -- independent journalist. last month a russian journalist named oleg cashin who had written of a movement associated with the kremlin was beaten by attackers who broke his jaw, many of his -- both of legs and many of his fingers. no one has been charged for this crime. writing in "the new york times" this sunday, mr. cashin suggests that no one ever will. it seems intkaoub teubl, he writes that the atmosphere of

hatred and aggression artificially fomented by the kremlin has become the dominant fact in russian politics. the reset in relations with the united states and talk of economic modernization not withstanding, a man with a steel rod is standing behind the smiling politicians who speak of democracy. that man is the real defender of the kremlin and its order. i got to feel that man with my own head. i would ask that this entire article be included in the record as well, mr. president. the presiding officer: without objection. mr. mccain: an earlier "new york times" news story dated may 17 of this year and entitled "russian journalist fighting graft pay in blood" describe the fate of other independent journalists in russia, one is mikhail bagatov who exposed corruption in a moscow suburb. this is what happened to him.

last spring i challenged the leadership, a few days later my automobile was blown up. what is next for me? not long after he was savagely beaten outside his home and left to bleed in the snow. his fingers were bashed and three later had to be amputated as if his assailants sought to make sure that he would never write another word. he lost a leg. now 52, these in a wheelchair, his brain so damaged that he cannot utter a simple sentence. no one has been charged or held responsible for this crime either. the same article mentions another journalist, piotore lipitoff, attacked while attending a rally. as he was leaving, three men pushed him to the ground and punched him in the head. even while i was unconscious, they didn't let me go, he said.

this beating was recorded on video by protesters. his colleagues used the video to track down the met who beat him. they were police officers. while mr. lipitoff, 28, was recovering in the hospital, he said two other police officers visited and urged him to sign a statement saying that he had provoked the attack. officials later acknowledged that police officers had been involved in the attack, but they still brought no charges. instead they raid phr-d lipi -- mr. lipitoff's and brought a suit against him. they assert he sought to foment -- quote -- "negative stereotypes and negative images of members of the security forces." fearing for his safety and more criminal charges, he quit. sadly, i could go on and on like this, mr. president. to say nothing of the many unsolved murders. so i would ask the entire article be included in the record.

russia's beleagured political opposition unfortunately fares no better than its the journalists. i met with former deputy prime minister boris nepzoff who organizes peaceful political rallies to protest democracy in russia, but these rallies are often targeted and broken up by russian authorities. considering this is how russian officials treat their fellow citizens, it's not hard to see a profound connection between the russian government authoritarian actions at home and its aggressive behavior abroad. the most glaring example of this remains georgia. over two years after its invasion, russia not only continues to occupy 20% of georgia's sovereign territory, it's building military bases there, permitting the ethnic cleansing of georgians and denying access to humane

tehran -- humanitarian issues in violation of russia's obligations under the cease-fire agreement negotiated by president sarkozy. in a major step, president -- the president pledged tonal defend nonoccupied georgia in the event of a violent attack. yet, russian officials responded hostilely and dismissively. i ask, i ask my colleagues that when the russians illegally in violation of all international law occupy a southern -- a sovereign nation, a sovereign nation and have recognized these two provinces within the international boundaries of georgia as independent nations, how in the world are we going to trust them to adhere to a

treaty? i have met with the people in georgia who have been displaced from their homes. the sorrow and the misery inflicted on them. and president sarkozy of france flew in, arranged for a cease-fire. the russians agreed to it. they are in total violation of it. they're occupying 20% of the country of georgia. i think nicarauga, one other country has also recognized these two independent states in which the russians are now carrying out ethnic cleansing and stationing russian military. but don't -- not to worry, we can trust the russians to adhere to solemn treaties and abide by international law. when we consider the ver yaws crimes and abuses of this russian government, mr. president, its harder to believe that this government shares our deepest values. now, this doesn't mean that we cannot or should not work with the russian federation where possible. the world doesn't work that way.

what it does mean is that we need a national debate about the real nature of this russian government, about what kind of a relationship is possible with this government and about the place that russia should realistically occupy in u.s. foreign policy. the senate's consideration of the new start treaty offers a chance to have this debate, as this russian access to the w.t.o. some may want to avoid it but we cannot. i believe we need a greater sense of realism about russia, but that's not the same as pessimism or cynicism or demonization. i am an optimist, even about riewrk, and i often find sources for hope in the most hopeless of places. micmick kale cod roof skiplacese judge in his case, mr.

mr. kodorsvsky gave one of the most moving speeches i have heard in a long time. skilled that be included in the record, mr. president. this is how -- this is how he saw the broader implications of his trial, "i will not be exaggerating if i say that millions of eyes throughout all of russia and throughout the whole world are watching for the outcome of this trial they're watching with the hope that russia will after all become a country of freedom and of the law. or supporting opposition parties will cease being a cause for reprisals, where the special services will protect the people and the law, and not the bureaucracy from the people and the law. , where human rights will no longer depend on the mood of the czar, good or evil, where on the contrary the power will be truly -- the power will truly be

dependent on the citizens and the court only on law and good. for me, as for anybody, it is hard to live in jail, and i do not want to die there. but if i have to, i will not hesitate. the things i believe in are worth dying for. that there are still men and women of such spirit in russia is a cause for hope and eventually maybe not this year or next year or the year after that, but eventually these russians will occupy their rightful place as the leaders of their nation, for equal justice can be delayed and human dignity can be denied, but not forever. thank you, mr. president. i yield the floor. the presiding officer: the senator from massachusetts. mr. kerry: mr. president, i want to thank and congratulate the senator from arizona for his important and impassioned

comments about the situation in russia regarding the rights of mr. correspondent dove ski. i would say to him one thing. he asked the question, how do you trust russia? and that is precisely why this treaty is so important. a treaty is not built on trust. in one taught us more than that's famous words from president reagan: trust but verify. we don't have verification today. we're signature here with no verification. we're in a forced position of -- quote -- "trust -- where we don't necessarily. the sooner we get this treaty ratified the sooner we provide a foundation underneath the important question senator mccain asked which is, you know, if you can't trust them, you got to have verification. and the whole point is that you build a relationship even in the

worst of times so that your country, our country is more stable and more protected. during the worst of the soviet union, during the worst years of confrontation, we still built up a series of treaties in the arms agreements and various other kinds of agreements in order to try to tampen down the potential for hostility. our hope is that we can do that as soon as possible here. i'm going to suggest the absence of a quorum for a minute. the presiding officer: the clerk will call the roll. comments, our opening statements about the treaty itself. i had last talked about the modernization program, and senator kerry and i had a brief conversation about that, agreeing that this was a very important part of the ability for the united states to have a credible nuclear deterrent. we were talking about the nuclear weapons part of that. there's a second part of our nuclear deterrent, and that's the delivery vehicles, the

missiles, submarines, long-range bombers, cruise missiles, those components of our so-called nuclear triad that enable to us effectively deliver the warheads in the event that that should ever be required. the problem with this part of the modernization prapblg is that we -- package is that we don't have a degree of certainty that i think we need to have the assurance that moving forward with an even lower number of warheads is a safe thing to do. specifically, we have asked the administration for but not received assurances with respect to the long-range bomber, the icbm, the minuteman 3. let me just mention those two things. with regard to the long-range bomber, we have repeatedly asked will we have a nuclear-capable long-range bomber. that's what the triad is. it could be a penetrating

bomber, a bomber that carries cruise missiles that gets to the target. tpwu needs to be nuclear -- but it needs to be nuclear capable. we have no assurance. while everybody in the administration continues to say we believe in our nuclear triad, we must have a nuclear triad, we're not getting any satisfaction on the question what about the bomber leg of the triad? our current long-ranger bomber cruise missiles are due to be retired in 2025. will there be a followon? again, no reassurance. no funding has been provided in the 1251 plan i spoke of earlier for the replacement of an icbm minuteman 3. here there is very troubling language in the 1251 update on a follow-on assessment study. i'm going to quote what this assessment study will be predicated on. this is for the icbm. it is a study that will -- and i'm quoting -- consider a range of deployment options with the objective of finding a cost

effective approach for an icbm follow-on that supports continued reductions in u.s. nuclear weapons while promoting stable deterrence, that supports continued reductions in u.s. nuclear weapons. the key dryer i can't here is not to -- the key criteria is not to carry whatever is necessary. what i'm wondering is whether or not that suggests that the administration might not maintain an icbm capability so that it can pursue further reductions or that the icbm follow-on system will be used -- will be based on plans for reductions. let me just complete this thought. the administration's arms control agenda, my belief, should not be the key factor in determining the level of our icbm capability. i'll make a note here and allow my colleague to interrupt.

mr. kerry: i thank the senator very, very much. the presiding officer: the senator from massachusetts. mr. kerry: mr. president, i thank the senator. i thought it would be helpful if we talk about a few of these things as we go along. what i wanted to ask the senator is what he thinks is inadequate in the resolution ratification, deck hraeurgs 13 -- declaration 13 makes it clear the united states is committed to the replacement of vehicles. the service lines run well past the ten-year life of this treaty. so my question would be, since the d.o.d. is already scheduled study and decision deadlines, time lines for the replacement of all of these systems, so since that's outside of the four corners of the treaty, so to

speak, why would the declaration 13 not state that we are commited to proceeding to the full modernization and replacement of the vehicles? mr. kyl: i would be happy to respond to that. let me respond first by quoting two key officials of the obama administration. secretary gates and undersecretary of defense jim miller. first secretary gates: there are place holders for each of the modernization programs because no decision has been made. they are basically to be decided. along the lines that admiral mullen is just describing those are decisions we're going to have to make over the next few years in terms of we're going to have to modernize these systems and we're going to have to figure out what we can afford. end of quote. deputy undersecretary of defense jim miller -- quote -- "we think the current icbms are extremely stable and stabilizing

particularly as we demirv to one warhead each, we're doing that while the russians are mirving which creates more instability. to go on with the quotation. we will look at concepts that would make them even more survivable over time which would allow them to be part of a reserve force. my point in reading these two quotations is to suggest to my colleague that it is troubling that the administration is not willing to commit to making a decision, is not willing to commit to having a nuclear-capable bomber force, is not willing to say that the icbm force will support the delivery of the warheads required for that leg of the triad but rather will be based on what we can atpaorpbd be based on our -- based on our desire to continue to reduce u.s. nuclear weapons. and that perhaps we are

developing them in order to be part of a reserve force. all of this suggests that one quotation that was read by my colleague is a nice statement but doesn't reflect the reality of what the administration is actually planning on. mr. kerry: would the senator yield further? the presiding officer: the senator from massachusetts. mr. kerry: as the senator knows, a legitimate certain amount of analysis has to be made by d.o.d. in order to be able to submit to the congress a plan that's realistic both in cost and judgment about what the size will be. every single testimony from the joint chiefs of staff through secretary gates have all committed to the maintenance of a viable triad. that could not be more clear in this record. mr. kyl: if i may interrupt my colleague who interrupted me. a viable triad at a minimum per

se has to include nuclear capability or it's not part of our nuclear triad. right? what i'm saying here is the administration is not assuring us that the long-range bomber will be nuclear capable. so maybe we have a diad now, not a triad. mr. kerry: mr. president, again -- the presiding officer: the senator from massachusetts. mr. kerry: this is really important to understanding where we are here and what the differences are. all of these systems, all three, dodd has scheduled them -- d.o.d. has scheduled them and put out a time line. they have to go through that process. the fact is that they have -- they've stated in the 1251 report that they're going to replace the ohio class submarine when it commences scheduled retirement in 2027. i don't think president obama is going to be there in 2027, unless there's some extraordinary transition in america. that goes way beyond this administration in terms of a decision and in terms of a congress. the navy is going to sustain the

existing trident 2 through at least 2042. that's on the books right now, with the robust life extension program, the current minuteman 3 life extension program will keep the fleet in service through 2030, and d.o.d. has already begun the preparatory stories -- studies on replacement options which will begin in 2012. the soon to be completed long-range bomber issue that he just raised is not -- you know, is only on what type of new bomber is needed. not whether or not there will be a new bomber. so we don't -- the future congresses and future administrations are really going to make this decision. and to suggest that somehow the obama administration can right now be held -- have this treaty held accountable, the decisions where every one of those delivery platforms are going to

be in existence well beyond the life of any of us in public service any of us here, i think is completely inappropriate standard. i would ask my colleague why a 2027 date and a 2042 date and a 2030 date? and a commitment to a bomber, even though they don't know what kind of bomber, why that is not satisfactory? mr. kyl: let me answer a question with a question. given the fact that i think we're taking 30-minute segments each and we're having a debate here, can we agree we'll debate until 7:00? you can have half the time and i'll have half the time. either that or i'm going to have to quit yielding. mr. kerry: i appreciate that. i just think it's important to get oufplt i don't need that time, mr. president. i think it's important. i want senator kyl to have his time. i will not interrupt him but i wanted to try to see if we couldn't engage him in what the senate does, which is debate. mr. kyl: this is the kind of engagement we need on this treaty and other issues in this

body. too many times there is a senator coming down giving a speech. half of us aren't listening or more. this kind of colloquy can develop more useful material for our colleagues, for the record, i think than anything else. i'm very happy to engage in it. i just want to make sure that i don't run out of my time with my colleague's questions. here's how it relates and here's the importance. we're being told that even though the delivery systems -- and remember, this treaty deals with warheads and delivery systems. let's least warheads off to the side for a moment. the delivery systems which are the submarine with their missiles, the long-range bombers with cruise missiles in some cases, and our icbm force and the russian counterparts. those delivery systems are constrained in this treaty. the numbers are brought down to 700 deployable systems. so the question we have asked

naturally enough is: is that enough? will that work to cover all of the targets that we need to cover? i talked this morning about the fact -- the answer to that question depends in part on what our future plans are. because take the b-52. most of the pilots that are flying b-52's -- i think the word, two generations beyond the time these b-52's were built. these are aging aircraft. even the b-1's and to some extent the b-2's everybody realized need to be replaced. the decisions to do that need to be soon. whether or not 700 is a good number will depend on whether or not we have an adequate triad to deliver these weapons when the time comes. naturally we asked the question: what is our triad going to look like? it's true that some of these systems, the new systems that replace what we currently have won't be available until outside

the treaty. the ten-year limit of the treaty. but it's also true that every one of these take an inordinate amount of time. how they take so much time, i don't know. it seems like in world war ii, you had all kinds of weapon systems come together and be built and fight the war, and it's over in five or six years. but nowadays it takes five or six years just to get something ready to go. then it takes another five or six years to deploy it. these are weapons systems with long time frames for development and deployment. and it is true that the navy has already made the basic decision for the submarine. i haven't mentioned the navy. that's not my concern. but my concern is the i.b.m. force and the bomber force. i'll leave the point with this. what's troubling to me is on the bomber force, our administration is unwilling to commit that we will have a bomber leg of the triad nuclear capable. well, that's an important decision because if we're talking about 700 delivery vehicles that will not include

nuclear-capable bombers, i've got a problem with this. and the reason is because when you get briefed on how we are going to deliver these weapons if, god forbid, they ever to be delivered or how are we going to deal with a potential russian breakout, for example, or how we're going to deal with a problem if, let's say we have an issue with one of our submarine or icbm components to the triad, if we don't have a bomb-carrying or -- or cruise missile-carrying nuclear capability with our bombers? then it is quite obvious that the viability of our triad is implicated. so we have to know these things. it's not something esoteric question. we're talking about delivery systems being brought down to 700, and is that too low? well, it's not too low if we've got a very viable triad but it becomes too low if our triad is not viable. let me just, because in the time remaining i'll probably only be able to talk about only one subject, let me talk about

missile defense. this is something that a lot of my colleagues have talked about. it's kind of the core at the concerns that a lot of us have of the treaty, and, frankly, my ultimate support or not will depend, to some extent, on how we resolve this issue, whether it's by amendment to the preamble to the treaty or in resolution of ratification or a combination of things. but clearly, this treaty implicates u.s. missile defense and that is wrong. one of the chief achievements of the bush administration was to finally decouple missile defense and strategic offensive weapons and the treaties that deal with strategic offensive weapons. it was somewhat limited in the start treaty, but in the moscow treaty of 2002, or so-called sort treaty, we said we're going to reduce our weapons. if the russians want to do the same, that's fine with us, we don't need a treaty to deal with that. the russians essentially said we want a treaty and we want to you limit your missile defenses. we said no and eventually they were relented and said okay. and i've spoken with secretary

reich, i've spoken -- secretary rice, i've spoken with undersecretary fife and others in the administration who count as one of their achievements the fact that we finally decoupled those two issues. well, now in this treaty, they're right back together again and in a way that's enimcal to the development of missile forces to the united states. that's what i want to focus here. we don't think that there should be any limitations on u.s. missile defense. and yet the new start treaty not only contains specific limitations, though we were told there wouldn't be any, but also it reestablishes this unwise linkage that i talked about in the -- in the preamble. let me just quote three things that under secretary tauscher said as late as march 29 of this year -- quote -- "the treaty something nothing to constrain missile defense. this treaty is about strategic weapons." okay. "there is no limit on what the united states can do with its missile defense systems." third quotation, "there are no constraints to missile defense."

end of quote. now, those three statements are not true because it turns out there are limitations and constraints specifically in the treaty. article 5, paragraph 3, specifically constrains a particular kind of missile defense, the united states using a strategic offensive silo, for example, to use for defense. we've done that before. our current plans are not to do it again because it's expensive. we might not do it in the future. this administration says it doesn't want to. but it's certainly constraining. how can you say that those three statements by under secretary tauscher are true? they're false. the administration simply says, well, yes, there are limits but we don't intend to do that anyway so it's kind of a theoretical limit. well, in the first place, why is there a limitation on any missile defense capability in this treaty? we thought this was about, as

secretary tauscher, about strategic weapons. well, it turns out that the russians, of course, want to make it also about missile defense. one way they make it about missile defense is by article 5, section 3 -- or paragraph 3, specifically constraining a particular way that we would develop missile defense. that is what we object to here, that relinkage. why is that important? because the russians have always wanted to limit u.s. missile defenses and this now gets the foot in the door for them to argue that under the tre treaty, they would have a right to withdraw if we improve our missile defensesmen defenses --e defenses. that gets to the real issue here and that's the preamble to the treaty. i want to quote from richard pearl and ed middle east, both m served in the reagan administration. and he was with president reagan at reykjavik, a seminole moment in arms control history and for

the reagan administration, a time when president reagan decided that missile defenses for the united states were so important that he would walk away from a major strategic offensive weapon proposal that had been made to him by president gorbachev. here's what they write. "with this unfortunate paragraph, new start returns to the old cold war balance of terror and assumes that attempts to defend the u.s. and its allies with missile defenses against strategic attack are threatening to russia and thus destabilizing. limiting missile defenses to preserve u.s. as a rule noacialt russian strategic nuclear strikes, as defined by the russians, will result in less effective defenses against any and all countries, including iran and north korea." end of quote. that's the problem. now, how does that proob rise? -- problem arise? because of the language in the preamble. this is the language followed by two signing statements from russia and the united states that define the intentions of the two countries with respect to this issue of missile defense. and here's what the preamble

states. quote -- "the current strategic defensive arms do not undermine the viability and effectiveness of the strategic arms of the parties." that's what it says, in part. current strategic defensive arms do not undermine the viability and effectiveness of the strategic arms of the parties. current. now, that's new language. that was not in the start i treaty. so what they're doing is defining the current systems. and why is that important? because later, they talk about any addition as that would qualitatively or quantitatively improve our system would allow the russians to withdraw. here's what -- what -- well, let me just make one point before i quote that. the administration says that the preamble is not important because you can always walk away from a treaty. and even though the russians say this preamble language gives them the right to walk away from the treaty, the they can do it anyway so what's the big deal? well, you can't just do it on a whim. we agree that if there is a --

is a matter that is so important to either country that it constitutes an exceptional circumstance, referred to in article 14, which is the withdrawal clause, then a party can withdraw. so, yes, it's true that either party can define anything as an exceptional circumstance and, therefore, withdraw. but that's bad faith and it clearly is something that would be very difficult for a country to do. unless a country had built into the treaty the very excuse that they are talking about as grounds for leaving the treaty. and what would that extraordinary event be? well, it would be the improvement of u.s. missile defense systems. here's what foreign minister lavarof said on march 28 -- quote -- "the treaty and all its obligations contained are involved only within the context of levels which are now present in the sphere of strategic defensive systems." that's their position. that's their legal position. that's what they mean by "current."

in the preamble. and the reason that legal opinion is important is because the united states does intend, if you believe secretary gates -- and i certainly do -- does intend to develop missile defense capabilities that could qualitatively advance our protection against a missile coming from russia. it's not necessarily designed for that purpose. it may be designed to thwart an icbm from iran or from north korea but it has that capability. and the russians can easily define it as such. here's the russian legal opini opinion. quote -- "the treaty between the russian federation and the united states of america on the reduction and limitation of strategic offensive arms, signed in prague on april 8, 2010, can operate and be viable only if the united states of america refrains from developing its missile defense capabilities quantitatively or qualitativel qualitatively."

end of quote. well, we will develop our missile defense capabilities quantitatively and certainly qualitatively. that's what the phased adaptive approach that secretary gates has announced is all about, a qualitative improvement of our missile defense capabilities. and so how would the russians treat that? their statement, their signing statement, signed at the time that the treaty was signed, says that the exceptional circumstances referred to in article 14, the withdrawal clause of a treaty, include increasing the capabilities of the united states of america's missile defense system. in such a way that threatens the potential of the strategic nuclear forces of the russian federation. that's why this preamble is so important. they treat it as the legal basis for their withdrawal if we improve our missile defenses qualitatively, which we most certainly will, and potentially

quantitatively. they've, therefore, built this into the record. and from my point of view, and a lot of my colleagues, this can only be read as an attempt to exert political pressure on the united states to forestall continued development and employment -- deployment of our missile defenses. and there's evidence that it's already worked. first of all, we have pulled back from the deployment of the ground-based interceptor system that the bush administration had developed and was prepared to deploy in poland with the radars associated in czechoslovakia. and we have also said now that with respect to our nato deployment of the so-called phased adaptive approach, the first three phases will be deployed but the fourth phase, the one that is most effective against an icbm coming from long range, which could include a country like russia, is available, not deployed but available. by 2020. instead of having a firm rebuttal in response to what the

russians said in the preamble and in their signing statement accompanying the preamble -- the signing of the treaty, what was our response? it was not a firm rebuttal. we didn't say, "no, that is not correct. that's not our understanding." that's not what we did, even though we had done that, by the way, with the start i treaty. we pushed back very firmly on the russian signing statement. but instead, the state department response to the russian unilateral statement reads as follows -- and i quote -- "the united states of america takes note of 9 statemenof thestatement on missy the russian federation. the united states missile defense systems are not intended to defect the strategic defense balance with russia. the united states missile defense systems would be employed to defend the united states against limited missile launches and to defend its deployed forces, allies and partners against regional threats. the united states intends to continue improving and deploying its missile defense systems in order to defend itself against

limited attack and as part of our collaborative approach to strengthening stability in key regions." end of quote. in other words, don't worry, russia, we're not going to develop missile defenses that could thwart your strategic offensive capabilities. we're only developing forces -- missile defenses that would be effective against regional threats, against limited missile launches, against limited atta attack. so it appears to me that while the russians have built into this treaty and into the preamble the perfect argument for withdrawal, and they've already said it constitutes exceptional circumstances under their interpretation of article 14, the united states has not responded with a negative but, rather, with a statement that says, don't worry. mr. president, might i inquire, is the original 30 minutes which this side was allotted consumed? the presiding officer: the

senator from arizona, there is no time limitation right now because we have no one following, so you're more than -- mr. kyl: met m kyl: let me do ti do see senator casey on the floor and i -- senator kerry may have something more to say. let me try to sum up what i'm saying about missile defense, though there is much more to talk about here and this will very definitely be 9 subject of -- be the subject of maybe even the first amendment that is offered on our side. this cannot -- this cannot -- well, i think we need to -- because there's been such a cavalier attitude about this on the other side, we don't need any amendments, we don't need to worry about missile defenses, this is serious business. you would never enter into a contract by a car -- to buy a car or to buy a house, for example, with the degree of uncertainty or disagreement between the parties as to what the terms mean, as you would -- i mean, think about this treaty. this is a very serious proposition that starts with a fundamental disagreement between the parties and clearly could

create enormous complications in our relationships in the future. mr. kerry: mr. president? mr. kyl: if i could just finish this point. instead of creating a more stable relationship, a relationship built on the reset, a relationship which is built on very clear, transparent views of things on how we're moving forward together built into this treaty is an inherent conflict that can cause nothing but trouble in the future. unless the unite united states s fine, we won't develop any missile defenses that could conceivably be effective against russia, which then means that they couldn't be effective against an icbm from iran or an icbm from korea. this is the dilemma that's presented by this treaty and its preamble terms. this is what causes us such great concern. and i'd be happy at this point to yield to my colleague and if he'd like to engage in a colloquy on this, that would be fine. the presiding officer: the

senator from massachusetts. mr. kerry: i thank the senator from arizona. i want to take a moment, though, to address this point that he's made. because i think it really is central and then we can talk about it and i certainly want to give senator casey an opportunity here. but let me just say to my colleague from arizona, mr. president, a lot of us are sort of scratching our heads and trying to figure out what we have to do to get the senator from arizona to accept yes for an answer. yes on modernization. yes on our willingness to go forward and build a missle defense. it has been said again and again and again by the highest officials of our government and the president, i think, will make some further statement about this hopefully in the next hours or day that can indicate the absolute total commitment to

proceed forward and the irrelevance of what the senator is referring to in the context of -- of a statement that is not within the four corners of the agreement that has no legal binding authority at all. none. now, don't accept my word for it. secretary of defense, robert gates, who i know the senator respects enormously said the following on may 25 -- quote -- "so you know the russians can say what they want, but as secretary clinton said, these unilateral statements are totally outside the treaty and they have no standing. they're not binding. they never have been." that's one statement. lieutenant general patrick o'reilly is the director of our missle defense agency. he testified on june 16th -- quote -- "this is yes i have

briefed the russian officials in moscow, a rather large group of them in october of 2009. i went through all four phases of the phased adaptive approach, especially phase iv." i'm quoting. "while the missles we have selected as the provide a defense for a regional type threat, they are not the size to reach strategic missle fields. it is a very verifiable property of these missles given their size. he says,s it was not a controversial topic the fact that a missle, given the size of the payload, could not reach their strategic fields. i have briefed the russians personally in moscow on every aspect of our missle defense development. i believe they understand what it is. and those plans for vecht are not limited by -- for development are not limited by

this treaty. so in the treaty rat indicationn resolution, here i'm going to make the senator from arizona happy, but i'm also not going to please him. the happy part, if you want to be purely technical, if you want to be literal as to a technical writing of some particular thing, can you say that article 5 has a limitation on strategic defense? yes, in the most limited technical way you can say there is a limitation. the limitation is that we can't take intercontinental missle silos other than the ones grandfathered, we're not going to take the new ones and convert them into an intercepter missle silo. in that sense we've limited something, but have we limited missle defense as we think about

it in its larger strategic concept? and the answer is, no, not one iota we haven't limited it. why? because those particular silos cost more money and in a deficit curbus age where we're -- conscious age where we're trying to cut spending, it is a heck of a lot smarter to dig a new hole, build a new silo that's more effective, that's more efficient, that's less costly and does the same thing and that's our plan. so there's no limitation on the ability to actually deploy missle defense. so if we want to play a technical game here on the floor and run around and say, oh, there's a limitation here, it's just terrible, you can do that. but it doesn't make sense. it doesn't actual limit the plans of this administration to go forward with real missle defense and with a system that allows us to intercept missles fired from a silo in the missle

field in the united states. what's more, if you do convert those other silos, we don't have a mechanism for determining what kind of missle is coming out of there is it an icbm or is it an interceptor? and what happens if we're firing one of those mitches to intercept -- missles to intercept a rogue missle from korea and the russians misinterpret it and they don't know what it is. there's no plan -- there's nothing that says that we can do that. so, in fact, we're safer given the way the administration has decided to deploy this. here's what the resolution of ratification says -- it says -- this is understanding number one, missle defense, this is what we will vote on: it is the understanding of the united states that the new start treaty does not impose any limitations on the deployment of missle defenses other than the requirements of paragraph 3 of

article 5 i that just referred to about the silos that we don't want to do anyway, that cost the american people portion that make us less -- more, that make us less safe. we don't want that do that. that's in there. that's all that's in there. it goes on to say this provision shall not apply to icbm launchers converted prior to the signature of the treaty. it goes on, any additional new start treaty limitation on missle defense, beyond the one i just talked about, including any limitations that come out of the bilateral consullive commission, those would require an amendment to the new start treaty which could only enter into force with the advice and consent of the united states senate. that's it. we have control over whatever might happen beyond that one simple silo issue. so i would respectfully suggest

we ought to listen to the folks who are telling us what they've accomplished here. secretary of defense, so from the very beginning of this process more than 40 years ago the russians have hated missle defense. it's because we can afford it and they can't and we're going to be able to build a good one and are building a good one and they probably aren't. and they don't want to devote the resources to it and so they try to stop us through political means. this treaty doesn't accomplish that for them. that's what secretary gates said. those are his words. this treaty doesn't accomplish it. so, you know, i believe, senator -- i believe the secretary of defense. i believe general patrick o'reilly who, you know, serves our country one purpose. he's not a member of a party. he's not here for politics. he believes he's defending the nation. he believes he told the russians

in full, we're doing things in full. and secretary clinton said that the obama administration has consistently informed russia that while we have a framework, the united states cannot agree to constrain or limit ucbm ability operationally, geographically or in other ways. i don't know how much more yes, you can have in -- in statements. now, with respect to -- one last thing. with respect to the senator's comment about how they can withdraw. mr. president, they can withdraw for any reason they want at any point in time just by noticing us that they're going to do that. and guess what? so can we. so can we. both parties have the right to withdraw. so this isn't some new component that they could withdraw from. it -- you know, the point i would make to my colleague is

and he's very intelligent and knows these issues very, very well. the senator from arizona knows that you can't unilaterally get another country to change its perception of how they may feel threatened. that's what drove the arms race for 50 years. if the united states of america has an ability to knock down their missles that they think defend themselves and all of a sudden they no longer believe those missles defend them because we can knock them down, what do you think they're going to do? they're going to sit there and scratch their heads and say, wow, we ought to deliver them -- we ought to develop some method to guarantee that they can't knock them down or we've got enough of them so we can overwhelm whatever system they have that knocks them down. we went through this with president reagan. we spent billions trying to pursue this. we understand this.

and the fact is they're just stating a truism. those aren't my words. those are dr. henry kissinger's words who simply said all the preamble does is acknowledge they believe there's a connection. we've stated simultaneously we don't care if you believe there's a connection. we've stated that. secretary clinton stated it, secretary gates has stated it and the president has said, we're going forward with our phase iv. now, it's not connected. there's no legal binding qeks whatsoever -- binding connection whatsoever in this treaty, this does not restrain america's ability to have a robust superior system. if we do, we're going to make a decision when we deploy it to accept whatever consequences come with whatever shape, form we do deploy. but there's no restraint on our ability to do . it and, in fact, my colleagues on the other side of the aisle ought to be leaping at this opportunity because it, in

effect, codifies america's intent and codifies our independence and capacity to go off and do what we're going to do. so i wish i could get the senator from arizona to accept yes for an answer. mr. kyl: first of all, there are a lot of colleagues on my side of the aisle. so there's not just a matter of satisfying jon kyl. i'd be happy to take yes for an answer if that were the answer. first ofle all, the preamble has been agreed to by both parties. this is not just a russian statement of intent. the preamble is part of the treaty that we have agreed to and for the first time it connects missle defense by saying that the current strategic defensive arms do not undermine the strategic defense of the parties. my colleague says secondly it's only a technical argument that the treaty con strains missle

defenses. it's more than a technical argument because it specifically does and there was no place in this treaty for any limitation on missle defenses, however -- however important or unimportant they are. why -- let me finish my point. why would the russians insist on putting that in there except to establish the -- the point that, yes, a strategic arms control treaty will deal also with missle defense. it does. and the preamble does as well by linking the two. and why is this important? there is not a technical statement in the treaty that says the united states will limit its missle defenses. that's true. but because the russians interpret the extraordinary events, that's the technical term under article 4 that would permit a country to withdraw as specifically including the u.s. development of missle defenses that are qualitatively better than we have now. better than current policy. because that's interpretation, that's their interpretation, whether we agree with that

interpretation or not, we have created a dichotomy between the two parties to a very important contract here. they interpret it one way, we interpret it another. and so what will the inevitable result be? disagreement between our two countries about a very fundamental point, one which according to the russians will require them to engage in a new round of the arms race will begin according to president medvedev. so they're saying if you don't agree with us, then we're going to engage in another round of strategic offense weapon building and what we on our side are concerned about is that president obama, who has already backed off the deployment of a g.b.i. system, which was the most robust american missle defense system and has qualified, it appears, the deployment of the fourth phase of the phased adaptive approach, and whose -- who other people in the administration speak in -- in terms that suggest that our -- specifically talking about the state department

suggest that we will only develop a missle defense against limited or regional threats. those are all reasons to believe this position of the russians is already working to cause the united states to back away from what would have otherwise been a much more robust development of missle defense to protect the people of the united states. so that's the argument we're making. we can say that technically anybody can withdraw from the treaty and the preamble doesn't mean anything and so on it appears to have a significant meaning within this administration is the point we're trying to make. mr. kerry: mr. president, i want the senator from pennsylvania to have his chance and we're running out of time. i disagree with the senator with respect to the judgment he has made with what it does or doesn't do and we'll have an opportunity to be able to further discuss that component of it. let me just remind the senator what -- what secretary gates said this may. he said you under the last administration as well as this one, it's been the united states

policy not to build a missile defense that would wren tker use -- render useless russia's ph-fld capabilities. he went on to talk about the expense and capacity we have today. we're going to continue to develop whatever the best system is that we're able to develop that could protect the united states of america. we support that. the administration could not be more clear in its determination to continue to do that, including phase 4. i will submit when we get time and come back here further statements and further clarification to the senator that hopefully can give him a comfort level that there is no dichotomy that, we are proceeding forward. the russians understand what we're doing. we should not misinterpret. preambles have historically incorporated statements that one side or the other need for

domestic consumption for politics. there is no misinterpretation here about where we're headed, what we're committed to do. and i would think that the recent announcement by the administration in lisbon and the embrace of this effort through the european countries, our allies, would be strong testimony to the direction that we're moving on with respect to this missile defense. we will continue this. i look forward to do that with my colleague. i thank him for his courtesy. i loooooooooooo of our colleagues. madam president, few people can say they have had the same range of experiences and successes in life as senator jim bunning. in fact, there isn't even

another major leaguer who can say he struck out ted williams three times in one game, and jim accomplished that notable feat in just his second year in the majors. 39 years after that, he had become the only member of the baseball hall of fame to serve in the u.s. congress. for the past 12 years, i have been honored to work alongside this remarkable american here in the senate. we follow different paths in life but we share a deep love for kentucky and its people. it's been n my honor over the years to work closely with jim to advance our common goals. so today i would like to say a few words about my good friend as we honor his remarkable life and his remarkable service. jim was born and raised in southgate, kentucky, and it wouldn't surprise anybody to learn that he excelled in school and in sports growing up. he played baseball as a teenager at st. xavier high school in cincinnati, but it was for his skills as a basketball player

that would earn him an athletic scholarship to xavier university. baseball interrupted his college education, but at his father's insistence jim would return to xavier and earn a degree in economics that served him well in congress over the years. he entered the majors in 1955, and over the course of a storied 17-year career, he would play for the detroit tigers, the philadelphia phillies, the pittsburgh pirates and the los angeles dodgers. jim is a pretty imposing force at committee hearings. just ask chairman bernanke. but he was a dominating presence on the mound long before that. at 6'4", he was a hard-throwing sidearmer who would tumble off the mound with every pitch he threw. by the end of his career, jim could boast that he was the first major league pitcher to win 100 games, rack up 1,000 strikeouts and throw no-hitters in both leagues. he finished with an impressive

224 wins, 184 losses, 2,855 strikeouts, and a 3.27 e.r.a. the career stats that would earn him a spot in the baseball hall of fame. jim's two greatest pitching achievements were his no-hitter in 1958 and the perfect game he threw on father's day, 1964, a feat that has only been accomplished 20 times in baseball history. another little-known feat was jim's so-called immaculate inning in 1959 when he struck out three red sox on nine pitches, a feat that's only been achieved 43 other times in baseball history. around here, we joke that jim likes to throw high hard ones, but he developed the skill early. over a four-year period with the phillies, jim hit more opposing batters with pitches than any other pitcher in the league. in fact, over a 17-year career, he plunked 160 batters or nearly

ten batters a year, making him the 13th most dangerous pitcher of all time, ahead of such other well-known head-hunters as roger clemens, nolan ryan and don drysdale. jim has never been afraid of a little chin music, and he brought that same competitive mentality to his life in public service. after baseball, public service seemed like a logical choice. it was jim's turn to give back. give back is exactly what he did, and when jim walks out of this chamber for the last time at the end of this session, he will be able to say with justifiable pride that he has given 3 years of his life to public service and to kentucky. over those three decades, jim has served in all levels of government, from the fort thomas city council to the kentucky state senate to both chambers in this building, 12 years in the house and 12 in the senate. he has dedicated his life to serving the people of kentucky,

and kentuckians are grateful for his service. in the house, he made a name for himself, among other things, by working tirelessly to strengthen and protect social security as chairman of the house ways and means committee subcommittee on social security. and in 1988 he decided to make a run at the u.s. senate seat which at the time was held by wendell ford. it turned out to be a pretty close election, but once jim came to the senate he turned out to be one of the most hardest working and influential members of this chamber. he's been a budget hawk who for years has sounded the alarm on the kinds of concerns about spending and debt that drove so many americans to the polls last month. jim spoke for many americans when he said that being a grandfather to many, he worries that future generations will be saddled by the poor decisions that are being made today. for the first time in my life, he said, i question if my grandchildren will have the same

opportunities that i had. one particular issue that's been close to jim's heart is the jewish of adoption. in -- is the issue of adoption. in 2001 jim introduced legislation to make adopting more affordable for american families. in 2007 he introduced legislation to make those tax incentives permanent. of course if there ever was a controversial issue regarding a national past time on capitol hill, jim was at the forefront including the 2005 hearings related to steroid use in baseball. in one memorable exchange from that hearing, jim offered the following testimony from his own experience as a player. he said "mr. chairman, maybe i'm old-fashioned, but i remember players didn't get better as they got older. we all got worse. when i played with hank aaron and willie mays and ted williams, they didn't put on 40 pounds to bulk up their careers and didn't hit more homers in their late 30's than they did in their late 20's."

it was this straightforward, common sense approach to issues that won jim a legion of admirers not only on the baseball diamond but off it as well. in particular, jim's passion and personal perspective helped shed light on the dangers of steroid at the professional level and the growing use of young athletes at all levels. jim has been a staunch supporter of clean coal technologies as an efficient way to use coal, improve our environment and bring jobs to kentucky. another issue that was extremely important to all kentuckians was the failed cleanup of radioactive contamination that was found in the drinking water wells near residences at the department of energy's aourpl enrichment -- uranium enrichment plant in paducah, kentucky.

jim criticized the d.o.e.'s cleanup efforts. in every issue he's taken on, whether national, statewide or local, jim has been a man of principle from start to finish. he stayed true to himself. and in a truly remarkable life, he's got a lot to be proud of. but if you were to ask jim to list his greatest achievement, i don't think he'd say it was his election to the u.s. senate or his induction to the hall of fame. they both come at a distant second and third to the day he married his high school sweetheart mary. jim and mary still live in northern kentucky where they grew up. they have been married for nearly 60 years. together they raised nine children and they enjoy nothing more than spending time with the next generation of bunnings, which the last time i checked included 35 grandchildren and 5

great-grandchildren. jim is happy to give all the credit of his success to mary. as he put it in his hall of fame induction speech, she's his rock. today we honor and pay tribute to our friend and colleague of more than three decades of public service. jim will be remembered for his two hall of fame worthy careers, for his example of principled leadership, for his devotion to god, country and family. on behalf of myself and the entire senate family, we thank senator bunning for his service, senator bunning for his service,

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