governments. this country needs its secrets kept regardless if the news media wants to expose them to condemn a president or to praise him. this isn't simply about keeping the government's secrets secret. this is about the safety of american personnel overseas at all levels from the foot soldier to the commander in chief. it is now my pleasure to recognize for his opening statement, the ranking member of the subcommittee, the distinguished gentleman from virginia, mr. scott. >> thank you, mr. chairman. today we'll examine issues related to leaks of sensitive government information, sometimes classified, sometimes not classified. this hearing is motivated in no small part by a recent spate of stories in the news that appear to have as their basis information of -- leaked information from within the federal government. these stories include details of cyber-warfare in iran, covert mission to thwart a suicide bomber bound for the united states, and the administration's

process of nominating individuals as targets through drone strikes in yemen and pakistan. although these stories may have given some members a renewed sense of urgency, it is important to put them in context. the two points to be made here -- first, the obama administration's work to investigate and prosecute suspected leaks is without peer. this administration has prosecuted more leaks than all previous presidential administrations combined. attorney general eric holder has appointed two u.s. attorneys to lead the federal investigations into recent leaks. director of national intelligence, james clapper, has issued new rules to deter further -- future incidents, among them rules authorizing the inspector general of the defense community to conduct an independent administrative investigation, even if the justice department declines to bring criminal charges in a specific case. second, the problem of leaks in the federal government is not new. there were spies at the founding

of the republic. we have grappled with this problem with federal law since the first world war. in the modern sense of leaking information to the press, we've had to work to balance our security interests of a free and robust press with the interests of a free and robust press for the better part of 50 years. these problems are not amenable to easy solutions. particularly in light of the fact that we do not always agree on the scope of the problem. we all want to protect national security so that we can keep our citizens safe. but we cannot disregard the right of american citizens in a system of self-governance, a system that requires the public to be well informed. when a government official leaks sensitive information to the press that reveals the government is engaged in unlawful activity, do we simply leave it up to the same government's discretion as to whether to prosecute the person for possibly serving the public's interest? what about leaks of information

that do not implicate any national security interest at all? overclassification is an enormous problem in the federal government, and current law does not distinguish between leaking classified information with the intent to harm the united states and blowing the whistle on unlawful activity that never should have been classified in the first place. congress will soon -- may soon consider legislation that attempts to address these shortcomings in existing law. as we move forward, we must be careful. any decision to limit what the public officials and private citizens may say about sensitive government information must be balanced against the important issues of free speech, due process, and the requirement -- and the fact that some of this information may reveal improper or even criminal government actions. just as the authors of the espionage act of 1917 did not anticipate our problems with leaks in the digital information age, there may be unforeseen con

scenes of any change that we make today. it is easy to overreact to news stories especially in an election year, but we must be careful before we limit what people say. particularly in respect to the operation of our government. i thank you, mr. chairman, i yield back the balance of my time. >> thank you. the chair of the full committee, the gentleman from texas, mr. smith. >> thank you, mr. chairman. and mr. chairman, i associate myself with year your opening statement. recent leaks of highly classified information poses serious threat to our national security and put the lives of americans and our allies at risk. national security experts from both republican and democratic administrations have expressed outrage over the leaks and the effect they have on ongoing and future intelligence operations. what sets these leaks apart from other leaks we have seen is that the media reports that many of these have come from highly placed administration officials.

if true, this means that administration officials are weakening our national security and endangering american lives. national security operational details exist to meet the covert needs of the intelligence community that protects the american people. as fbi director muller recently testified, "leaks such as this threaten ongoing operations, puts at risk the lives of sources, makes it much more difficult to recruit sources, and damages our relationships with our foreign partners." and consequently, a leak like this is taken exceptionally seriously, and we will investigate thoroughly. director muller went on to say, "i don't want to use the word "devastating," but this will have a huge impact on our ability to do our business." your ability to recruit sources is severely hampered. so it is -- it also has some long-term effects, which is why it is so important to make

certain that the persons who are responsible for the leak are brought to justice," end quote. publications that publicize classified information claim to promote increased government transparency. but i wonder if their real motivation is self-promotion and increased circulation. they claim to be in pursuit of uncovering government wrongdoing, but dismiss any criticism that their actions may be wrong or damaging to our country. these leaks have also resurrected debate on first amendment protections according to media publications. what are the boundaries of free speech? how do we balance this freedom with the government's need to protect certain information? i hope the justice department will bring the full force of the law against those who leak protected information. we can judge whether the administration is willing to conduct a serious and objective investigation by considering two factors. one, whether they will hold

administration official responsible, and two, whether the investigation is completed before the general election. otherwise, the american people rightly can conclude that the administration is hiding the truth and has endangered americans' security and american lives. mr. chairman, finally i want to say that the administration's track record is not encouraging. it was pointed out by the ranking member of the subcommittee a minute ago that the administration has in fact initiated a number of investigations of leaks. but very little if anything has come out of those investigations. i hope this time it will be different. thank you, mr. chairman. i yield back. >> the ranking member of the full committee, the distinguished gentleman from michigan, mr. conyers. >> thank you, chairman sensenbrenner. good morning to our witnesses.

this is a difficult matter -- national security leaks and the law. my good friend from texas, the chair of this full committee, wonders if self-promotion played a role and if there were prominent members of the administration involved in the leaks. well, that's what we're here to try to determine. he hasn't mentioned any names, so i presume he's not sure who's doing it. we have our own investigative capacity, so why don't we inquire ourselves? we also have the regular power of subpoena. if there's somebody he think we ought to talk to, we should take

to them. if there's somebody that isn't cooperating with us in this investigation, which is a legitimate subject for discussion, we should subpoena them. >> if the gentleman will yield, i will take the gentleman up on his offer immediately. and i suspect the chairman of the subcommittee will, as well. if you're going to support our efforts to subpoena individuals from the administration, i couldn't ask for more. >> well, that's why i'm suggesting it. >> if the gentleman will yield, if he will submit to the subcommittee chair a list of people that he wishes subpoenaed and the full committee chair does the same, i think we can have a good bipartisan subpoena issuing session. >> yeah, the only problem is that at this point neither of you have anybody that you want to subpoena, i presume. and neither do i. >> i'll be happy to come up with some names.

>> well, okay. that's great. you know, we could have had this discussion before 10:00 a.m. on the 11th day of july. right now, this hearing is going on without anybody knowing who they would like to talk with. now we've all agreed to pull together three bipartisan lists. i'm very sure the former attorney general from california who is a member of the committee, he can easily come up with a list. >> i'll give you some right now if you'd like to. how about all the people that were in the situation room as identified by "the new york times?" >> just a moment, sir. with you -- >> the time belongs to the gentleman from michigan. >> yeah. we can get you time, but i'm not

here requesting names. i'm here pointing out that we don't apparently have any names. now all of a sudden we've got bipartisan panel, everybody's willing to produce names. and by the way, i didn't say that i had any names myself. you're the ones running the committee and saying that this is an important subject. and i agree with you. but i just -- i just want to describe the nature of the setting as this starts out with. now -- now let me point out just a couple things. we must react to concerns about leaks in ways that do not undermine the openness and

transparency of government. i think we can start off there as a beginning point. i would like to hear some discussion about the issue of overclassifications of documents in the federal government. i think that's worth our attention. and then a law passed in 1917 needs to be looked at again. what went on as espionage in the early part of the 20th century i don't think has much relevance now. and i think there's a lot of work for the committee on the judiciary. and this subcommittee in particular -- >> the gentleman's time has expired, and without objection he's given two additional minutes. >> i thank you, chairman sensenbrenner.

and i won't use the two minutes. but i will just conclude pie saying when we look at the issue of leak, let's look at them across a period of time that includes all the former as well as the current administration. and i thank you for your generosity, and i return the balance of the time. thank you very much. >> thank you. without objection, all members' openings statements will appear in the record at this point. without objection, the chair is authorized to declareerieses during votes -- declare recesses during votes on the house floor. it is my pleasure to introduce today's witnesses. ken waynestein is a partner in the law firm of cadwaliver, wickersham, and taft, where his practice focuses on corporate internal investigations. he is also an adjunct professor at georgetown law school. mr. waynestein served as an assistant u.s. attorney in both the southern district of new

york and in the district of columbia. later he served as the u.s. attorney in d.c., and then was assistant attorney general for national security. he served as fbi director robert s. muller's chief of staff, and then as president george w. bush's homeland security adviser. he received his undergraduate degree from the university of virginia and his law degree from the university of california at berkeley. mr. nathan sales is an assistant professor of law at the george mason university school of law. before coming to george mason, sales was deputy assistant secretary for policy development in the u.s. department of homeland security. he previously served as counsel and senior counsel in the office of legal policy that the u.s. -- at the u.s. department of justice. he was the john m. olin fellow at georgetown university law center in 2005 and 2006. from 2003 through 2005 he

practiced at the washington, d.c., law firm of wiley, rhine, and fielding. professor sales clerked for the honorable david d.sentil for the u.s. court of appeals for the d.c. circuit. he received his undergraduate degree from miami university and his j.d. from duke. colonel ken alard is a commentator on foreign policy and security issues. for more than a decade he was a featured military analyst on nbc news, msnbc, and cnbc. in 2006 he joined the faculty of the university of texas, san antonio, as an second 95 residence and senior lecturer in management. his military career included overseas services as an intelligence officer as well as tours of duty as an assistant professor at west point, special assistant to the army chief of staff, and dean of students at the national war college. he received his undergraduate

degree from lycoming college, his mpa from harvard, and his ph.d. in national security from the fletcher school of law and diplomacy at tufts. professor steven vladic is a professor of law and associate dean for scholarship at american university, washington college of law. he is also a supreme court fellow at the constitution project. he is a senior editor of "the peer review journal" of national security law and policy. the senior contributor to the lawfair blog, a member of the executive committee of the section on federal courts of the association of american law schools. previously he was an associate professor of law at the university of miami school of law. professor vladic clerked on the u.s. court of appeals for the ninth circuit, and the honorable rosemary barkett on the u.s. court of appeals for the 11th circuit. he received his bachelor of arts from amherst and his j.d. from

yale law school. the witnesses' full statements will be entered into the record in their entirety. i ask that each of you summarize in five minutes or less. and to help you stay with the time limit, there is a timing light on your table. and you all know that means. so i now recognize mr. waynestein. >> chairman sensenbrenner, ranking member scott, chairman smith, ranking conyers, and distinguished members of the subcommittee, it's an honor to appear before you today and to testify alongside my distinguished co-panelists. i spent much of my government career in the national security world where i saw the vital role that sensitive information plays in our national security operations and how those operations can be put in jeopardy whenever that information is compromised. the problem of national security leaking has come to the fore recently because of particularly damaging leaks the past few months. while these recent leaks are alarming, the reality is that government leaking has been

happening for as long as government has existed. and every american administration since the founding of the republic has suffered its share of leaks. leaks of national security information can compromise all aspects of our national security program. they can compromise specific national security operations, as happened in 2006 with the disclosure of the treasury department's secret program for tracking terrorist finances. they can compromise human sources, as apparently happened when it was recently reported that a saudi source had helped to foil al qaeda's recent airplane bombing plot. and keep in mind that whenever sources leak sources -- a source's identity or existence is leaked it not only negates the effectiveness of that particular source, it undermines our ability to develop and cultivate sources in the future. cleex can also compromise our methods as apparently is what happened in the alleged use of malware to attack the iranian nuclear weapons program. they can certainly endanger our government personnel like the cia chief of station who was

publicly outed and then killed by terrorists in athens in the 1970s. and importantly, they can weaken our alliances. those operational relationships between us and foreign services that are so vital to our national security operations around the world. in short, leaks can be severely damaging to our efforts to protect our country. now there's a wide range of different types of leaks, but the most common scenario these days is the leak of sensitive information to the press by a government official. an official whose motivations may range from base self-interest to desire to blow the whistle on wrongdoing and change government operations for the better. i share congress' concern about the need to enhance our defenses against such illicit disclosures. an important part of that effort is ensuring that in the appropriate cases we investigate and prosecute those who disclose our operational secrets. as you know, however, the just department does not have a lengthy record of successful leak prosecutions. that thin track record is not

for lack of trying, however. rather, it's the result of myriad of obstacles that stand in the way of building a prosecutable media laeak case. those include the following -- first, it's difficult often to identify the leaker in the first place, given the large universe of people who are often privy to this sensitive information that gets disclosed. second, our leak investigations operate under strict limitations in the justice department's internal regulations. limitations that are in place for all the right first amendment reasons. and finally, even when investigators can get by those challenges and the leaks are identified, the agency whose information was compromised is often reluctant to proceed with a prosecution out of fear that trying the case in public will both highlight the compromised information and disclose further sensitive information that it wants to keep confidential. for all these reasons, leak investigations and leak cases are exceptionally challenging. and the question is whether any of these obstacles can or should be addressed by changes to the

governing legislation. i agree with those who say that our current espionage statutes are cumbersome and antiquated, and i would support congress' effort to reform them. keep in mind, however, that this reform effort will be very complicated because it directly implicates the tension between national security and our cherished first amendment values. legislating in this area is challenging, and inevitably raises a host of complex issues. for example, consideration of the law that would flatly prohibit and punish any disclosure of classified information will require examination of the problem of overclassification of government information. also, any effort to revise the espionage act will lead to a debate whether the person who receives and publishes leaked information, i.e. the press, should be subject to the same criminal exposure as the government official who leaked it in the first place. these are certainly complex issues. given the damage caused by the continued leaks and the inadequacy of our current leak legislation, however, it's important that congress take these issues on and consider it

in appropriate legislative response. no matter where one stands on the political spectrum, we should all recognize the unchecked leaking of classified and sensitive information can cause grave harm to our national security. congress plays an important role in addressing that problem, and i applaud the committee for the initiative shown with today's hearing. i appreciate your including me in this particular effort and stand ready to answer any questions you may have. thank you, mr. chairman. >> thank you, professor sales. >> thank you. ranking member scott, ranking member smith, mr. conyers, member of the subcommittee, thank you for inviting me to testify. it's a pleasure to appear before you again. i'd like to use my testimony to outline some of the legal tools the government has available to combat leaks. first, federal courts have held that it's a crime under the espionage act for officials to leak classified information to the press. second, officials frequently sign secrecy agreements when they go to work for the government. and the supreme court has held

that these secrecy contracts are enforceable. these tools are useful but not perfect. as we've heard, the espionage act in particular is notoriously vague. and congress might want to consider amending it. so let me go into more detail starting with criminal prosecutions. the basic thrust of the espionage act is fairly straightforward. it's a crime for officials to "reveal information relating to the national defense to any person not entitled to receive it." now this law as the name implies quite plainly applies to spies who give documents to foreign governments. it applies when the courts give officials to the press. the leading case is united states vs. morrison. morrison was a naval intelligence officer, and he was convicted of violating the espionage act after he gave classified military photographs to a british magazine in 1984. the fourth circuit affirmed his conviction, squarely holding that the law applies to leakers, not just to spies. the reason leakers can be prosecuted, said the court, is because of the plain language of

the statutes. the espionage act doesn't refer narrowly to spies. speaks in broad and comprehensive terms. nor does it contain any exception for leak to the press. the court also emphasized the statute's purposes. congress' goal in 1917 was to prevent secrets from falling into the wrong hands. that harm materializes regardless of whether our enemies get their secrets directly from spies or indirectly by reading about it in the newspaper. what about the constitution? the fourth circuit rejected the notion that morrison had a first amendment right to leak. to hold otherwide "would be to prostitute the purposes of the first amendment." morrison is such an important precedent because it stands relatively alone. there simply aren't that many cases applying the espionage act to leakers. to this day, morrison remains the only person ever convicted of leaking classified information to the press, though several others have pled guilty to similar charges. over the 100-year life span of the act, the government has only

brought charges against leakers nine times. six of these prosecutions have come since president obama took office in 2009. next i'd like to discuss a lesser known but still important tool for combating leaks. contract law. sometimes the government will get advanced notice that an employee or former employee intends to leak classified information. that isn't just a potential crime. it's also a potential breach of contract. this is so because intelligence officials typically sign secrecy agreements as a condition of access to classified information. the government can go to court to have these contractural obligations enforced. indeed, the supreme court and fourth circuit have upheld these sorts of secrecy agreements. the cases known as sneff and marchetti involved a cia official who wanted to publish a book about his time working at the agency. again, the first amendment is not an obstacle. according to the supreme court, the government's interest in preventing leaks is so strong it can restrict officials from revealing classified information, even without an

express contractural requirement to that effect. finally let me spend a couple seconds talking about how these laws might be improved. it's no secret that some of the key terms in the espionage act are ambiguous. just what does information relating to the national defense mean anyway? and who specifically is a person not entitled to receive it? judges and academics have been hoping that congress would resolve these and other interpretive mysteries for more than a decade. there's another problem with the act -- the espionage act makes it a crime to leak information relating to the national defense as opposed to classified information or properly classified information. as a result, the statute has the potential to produce both false positives and false negatives. in other words, the law might criminalize some leaks that aren't really harmful, and it might fail to criminalize other leaks that are harmful. here's an example of the false negatives problem which is probably more severe. imagine what would happen if somebody leaked the u.s. negotiating strategy for ongoing

talks over a free-trade agreement. that information almost certainly doesn't relate to the national defense but might nevertheless be properly classified. because it doesn't fall within the four corners of the act, it might not be unlawful even though such a leak would cause exceptionally grave arm. congress ought to consider, and indeed congress has in the past considered either tweaking the iespionage act or to enact an entirely new statute. mr. chairman, thank you again for your time. happy to answer any questions. >> thank you very much. let me say that the yellow and red lights don't seem to be working. so i'll help the witnesses wrap up and thank you, professor. you wrapped up without any help. colonel allard? could you please pull the mike closer to you and make sure it's turned on. >> i appreciate your attention and members of the committee. mr. chairman, on my way here, i

had the occasion to stop at the airport. and there at midway airport, they've dedicated a certain portion of the terminal to memorial to midway. very appropriate. while there, there's a great quote from admiral nimitz who we in texas are very proud of because he was the hero of midway. what he said at the memorial i think is very important for us today. he looked back at the naval intelligence apparatus and midway. he said the fate of the nation quite literally depended on a few dozen men who had devoted their lives and whole careers in peace and war to radio intelligence. and that intelligence gave us the edge at midway. it literally meant the difference between life and death, victory and defeat. the top of which today is equally vital. the reason being what had just happened is in my lifetime unprecedented. and i mean, we all have seen leaks. i've been around government for the better part of 30 years.

if you see government, you see leaks. everyone understands this. and by the way, it's equally bipartisan, and occurs at every level, every administration. no one is exempt. and so if you try to amend the espionage act, you got to be very, very careful. but i very much associate myself with the idea of being extremely reluctant to mess with a law because you know what, i think what you must do first is look back at the original consensus going back all the way to philadelphia. between freedom and responsibility, between particularly the obligation of those who are being defended to make sure those secrets are intact. what really concerns me today is the fact that we've seen, as i said, something i never thought i would ever see in my lifetime. when the articles began to appear, when his book appeared, i never thought i would see those revelations ever discussed in the open press.