industrial espionage against a sovereign power, ladies and gentlemen, that is by definition an act of war. pure and simple. and the key thing about intelligence is admiral nimitz talked about that it removes ambiguity. when ambiguity and intelligence is removed, armies march, and navies sail. that's what just happened. now with iran, the islamic republic of iran, they've got link to terror that other people here are much more expert than i am, but on this very hill two days ago, you heard testimony from general keith alexander. general alexander happened to have been my student at the national war college. what he said was, we are extremely vulnerable to any form of terrorism by virtue of sad remains. when you do the same sad remains yourself, you can understand how -- people in glass house should not throw stones. that's what just happened here. and when you look at that, it should bring the committee up

short because you know what, you get the responsibility of looking at the espionage act and thinking, can we do any better with this. i've got great respect for what this congress can do in terms of investigation. i've been here as a congressional fellow myself, mr. smith, i did -- back in texas, i was in these halls for two occasions. one was goldwater/nichols. another was for the act in 1994. both were landmark legislation, both accompanied by a great degree of rigor, intellectual, every other way, analytical, to make sure the laws are being looked at, being analyzed correctly. with goldwater/nichols, the defense organization was the oldest game in the town save one other. it was looked at time again. finally people said, we need to address this law, here's why. with the acquisition streamlining act we looked at 800 laws and said here is how defense procurement can be improved. here's how and why, statute by statute. that was done. by the way, that statute that

was passed in 1994 is still the leading statute for defense today. so there's every means and every i think incentive for this committee to look carefully at the espionage act. mr. conyers, you are absolutely correct, sir, it was passed -- world war i legislation. industrial age. we're now in an information age. what do you do when you've got open source intelligence? i defended the constitution with my life for about over 25 years. for the last 15, i've been making a living from it. first with nbc news, and now doing writing on my own. and i'll tell you, i've never seen anything remotely like this where suddenly you have the access to information that you have. you have to make sense of this and say -- one statute we looked at in the 1994 legislation was whistleblowing. and guess what -- that's extremely important to do now, as well. the last thing i would say is you also have to be careful about the institutions doing this because in the case of the

"new york times," i'll tell you now, personal experience, they abuse their position. we've said time and again what mr. sanger did -- i used to work against the kgb. okay? what mr. sanger did was the equivalent of having a kgb operation run against the white house. when you investigate, which you should -- i know how those thing are done. i know about putting people in somewhat -- let's put this fairly, make sure they're well aware of what their rights are and make sure of the fact that there's accountability there, first and foremost. that's where this thing should be done very carefully. more than that, the thing i want to say to you -- >> the gentleman's time has expired. >> i'll tell you one key thing, make very sure that when you look at them you look at the thing from the standpoint of the national interest, not the press interest. thank you, sir. >> thank you. professor vladic? >> thank you, chairman sensenbrenner, ranking member scott, distinguished members of the subcommittee. thank you for the invitation to testify today and some such distinguished company. i've had the honor of testifying

previously alongside professor sales and mr. waynestein. but the fact that we and colonel allard continue to be called before you to talk on the topic of national security leaks provides in my view fairly strong evidence of the recurring nature of such unauthorized disclosures of classified information and the difficulties that generations of lawmakers, lawyers, and i dare say law professors have confrontsed in trying to address them. thus be i'm sure reasonable people will disagree about the politics of aggressively seeking to prosecute those allegedly responsible for the unauthorized disclosure of national security information. i hope to convince you two of related points that should transcend the politics of the moment. first, national security leaks are, in many ways, only a symptom of a larger disease that's been alluded to this morning of overclassification. a problem that congress unquestionably has the power if not always the inclination to ameliorate. second, even if the subcommittee believes that national security leaks by themselves are a

problem worth a solution and that this administration's fairly aggressive track record has not been sufficiently aggressive, the primary statute of the federal government has thus far used to prosecute alleged leakers, the espionage act which we've already been discussing, is terribly ill suited to the task. instead, if congress wants to pursue reform in this field, it must fundamentally revisit the federal classification scheme, and as parts of that scheme, provide a far more narrowly tailored and carefully crafted sanction. specifically targeted at government employees who intentionally disclose properly classified information to the public without any intent to harm our national security. until and unless reforms like these are undertaken, national security leaks will recur regardless of whether a democrat or republican sits in the white house. what's more, given how many governmental abuses or the past decade have been publicly exposed only through these kind of leaks, so long as the reclassification scheme remains

in its entire form this may not be an entirely undesirable result. i won't burden members with the overclassification, my written testimony has more on this. certainly we can bring this up in the q&a if it's relevant. i want to add brief points about what's been said with respect to t the espionage act. we talked about the age and ambiguity of the act. i think it's important to elaborate on a point that mr. waynestein made. the act does not focus on the initial party who wrongfully discloses national defense information. instead it applies in its terms to anyone who knowingly disseminates, distributes, or retains, i think that's an important point, retains national defense information to which they are not entitled without immediately returning that material to the relevant government officer authorized to possess it. in other words, the text of the act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or

even retain the national defense information that by that point is already in the public domain. this is a big part of why the act raises such profound first amendment questions. not because as professor sales suggested of the first amendment rights of the punitive leaker but because of the first amendment rights of they who retransmit the leak and those of white house read about the leak on the pages of "the new york times," the "washington post," and so on. mo moreover, the potentially sweeping aspect as well written may interfere with whistle lower by-laws. it protects the violation if such disclosure is not specifically prohibited by law and such information is not specifically 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 whistleblower statutes. finally, the act does not deal with the real elephant in the room. situations where individuals disclose classified information

that should never have been classified in the first place including information about unlawful government programs and activiti activities. most significantly, every court to consider the question has rejected the availability of a so-called improper classification defense. a claim by the defendant that if he could have not violated the espionage act because the information he is disclosing should not have been classified. testifying before the house permanent select committee on intelligence in 1979, the then general counsel of the cia described the uncertainty surrounding the espionage act as the worst of both worlds. as he explained, "on the one hand, the laws stand idle and are not enforced because they're obscure. on the other hand it is likely that the very obscurity of these laws serve to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as i am unsure of their obligations." whatever one's views of national security leaks, mr. chairman,

the critique drives home why the white house prosecuting national security leakers will be a legally fraught proposition. thank you. >> thank you very much. we will have questions under the five-minute rule. and first i will recognize the gentleman from california, mr. lundgren. >> thank you very much, mr. chairman, i appreciate that. does anybody believe that the laws this we are talking about, particularly the espionage act, would not properly come into play with the alleged revelation of our participation if true in the stucksnet virus or the flame viru virus? >> i'll give the law professor answer. i think it depends on how that information was actually disclosed. so -- >> well, well, okay. you're going to the question --

are you suggesting that it's a question of overclassification? >> no, sir. i'm suggesting that there could be situations where information is disclosed because an official who has the authority to authorize such a disclosure provides that authority. i don't know whether or not we know that's true in this case. >> would it bother you to know that the detail that was described in "the new york times," if true, is a level of detail not presented to members of congress such as the chairman of the cyber-security subcommittee on homeland security, this happens to be me -- >> i wouldn't have guessed. >> wouldn't that bother you that the -- an administration that is supposed to be working with the proper role of the legislative branch to do oversight utilizes

classification in such a way that members are not aware of the particulars unless they read "the new york times?" that is if what's in "the new york times" is true? >> it would bother me. all i would point out, it would hardly be the first time members of congress found out about those kinds of programs from the press as opposed to the administration. it would bother me no matter who was in congress and what -- >> because that also goes to the constitutional question of the powers of the legislative branch to do proper oversight to ensure that we are not having malefactors in the executive branch in areas of serious concern. colonel, you said this is unprecedented. >> yes. >> in your experience. >> absolutely, it is. >> and i know why i think it's unprecedented. but could you tell me why you believe it's unprecedented, in addition to the fact that as you mentioned, the experience of midway -- i do recall there was an expression utilized during

world war ii that went "loose lips sink ships." they could sink cyber-security. >> absolutely can. for reasons that general alexander pointed out on this very hill two days ago. we are vulnerable to any form t means. we're more dependent on these computer systems, everything than any other country on earth. so guess what, if a cyber virus comes into us, the same way we did it to iran, apparently, we are more vulnerable to this than the other guy, why would you do it? that's what bothers me the most. as i read the book, what really bothered me was the consistent access he had because you can't -- having written five books myself, you can't write a book unless he was there or talked about these things. he was there or had people that told him what occurred. when that degree of penetration is going on, that's when the kgb is in operation.

>> my observation is either the "new york times" is lying or they had access to a particular detail that could only have come from someone who participated in the situation room. and as someone involved in prosecutions in the past, you do look for motivation to try to figure it out. would it be unreasonable for us to subpoena individuals who would apparently be involved in the discussions that were revealed in these articles? >> as i read, knowing mr. sanger's book but bob woodward's book, the first two chapters are classified top secret code word. i thought okay, if i were doing the investigation, i would say sis row's great question. who benefits? whose position is enhanced by

the leaks? >> i know who was not benefited by it? that is the navy s.e.a.l.s involved in the operations and their families. i know that those professionals who were working with us in the area of cyber security are not benefited by this. i know that the national security interest of the united states is -- are not benefited by this. and so we ought to be looking at what is benefited by this. >> gentleman's time has expire, the gentlemen from virginia, mr. scott. >> in five minutes, you went through the definition of the offense willfully delivering or transmitting any information related to the national defense to any person not entitled to receive it if the official has reason to believe that the

information could be used to injure the united states to the advantage of any other country. a lot of words in there that are subject to interpretation. one is national defense. you talked about that a little bit. is that limited to military? >> it certainly includes military matters. >> includes military. but you mentioned trade deals and trade deals are not covered by the national defense? >> i don't think it clearly is covered in the way intelligence information would be covered or military information would be covered. >> foreign intelligence in the legislation we've considered included trade deals. >> i think a trade deal arguably could be in some circumstances but it's not as clearly relevant as intelligence information. >> are we talking about only classified information being covered or can sensitive information that has not been classified be covered? >> under the current statute it's possible unclassified information that relates to national defense could trigger national liability. >> all classified information

covered? >> not necessarily, there might be some forms of classified information not properly classified. might be some forms that do not relate to national defense. >> is improperly classified a defense to a criminal action? >> as my friend and colleague professor pointed out, all courts rejected the notion that improper classification exxon rates one under the act. >> we had press, one of the first cases was the pentagon papers. is a reporter liable if he reports what he heard? >> congressman, we talked about this before. i think the text of the statute, i think could be used to go after a reporter not necessarily for the act of publishing this information but even for the act of holding onto it when he's not entitled to. the government has been revery, very reluktant because of the first amendment concerns they

raise. in the pentagon papers mention, although the courts could not stop the "new york times" from publishing the papers, the nixon administration could prosecute them after the fact. >> so the state of the law now is what? >> you know, i think the best i can say the law is unclear. there's only been one case in the history of the act where the government has prosecuted a third party, that is a recipient of the information as opposed to the leaker. that was in virginia of 2005. there would be serious first amendment rights in such a case but they have not yet produced an opinion saying you cannot bring a prosecution. that's why i reference the quote about the uncertainty about the scope of the statute. >> if you're talking about the press generally, we've got new problems, who's a journalist and who isn't? >> is a blogger a journalist? >> the supreme court has

resisted giving special con tte to the press clause because they don't want to draw the distinction that's only part of the murkiness here. >> the wikileaks, is he a blogger? >> if they would go after julian assange, i'm sure there would be a first amendment issue. >> can i ask generally, what's the difference between somebody that leaks and a whistle blower? >> perspective. i mean -- >> is that the intent to harm part of this statute? >> i guess the problem is, congressman, there are examples of individuals who have been prosecuted for leaking who saw themself as whistle blowers. that's why it's a question of perspective, whistle goeing,

waste or misconduct, that will include leaking information not properly in the public domain. >> do you want to comment on that. >> there are two things, the the subject matter, is it relevant and germane to the national defense. the second being, what was your motivation? and any legal test also involves motivation and was the motivation here a promiscuous relation or was it intended to do something else. it's a very tough line to draw. >> the time with the gentleman is expired. >> thank you, mr. chairman. mr. wainstein, you said leaks have been around from the time of memorial. it strikes me one way to have fewer leaks is to prosecute and put in prison the people who do the leaking. i want to talk to you for a

second. >> i couldn't find a federal statutory reporter privilege in. am i missing it? >> you couldn't find a reporter privilege, no, you're right. >> then we'd have to turn to the common law and i'm not aware of any privileges unqualified and the reporter's privilege would be limited and would be qualified so then we move to this area where it's the first amendment, heaven knows we can't have limitations on that. together with the help from our friends who are law professors could come up with some examples on where they are limitations of first amendment rights. i'll go first, obscenity. what's another one, professor? >> well, you don't have to cite the cases. >> information about ships sailing dates -- >> how deceptive advertising?

how about students on high school campuses, they don't have the pull pan plea of first amendment rights? how about libel? how about government employees? so the notion that the first amendment has no limitations whatsoever is balder dash, legally and otherwise. that then lends me or leaves me with this conclusion. we are asking the u.s. attorney i think in the district of columbia to investigate leaks and if he follows doj policy, he has to ask the attorney general four months shy of an election for permission to subpoena a reporter in a case that may wind up being embarrassing for this administration. so why do we not have a special prosecutor in this case? >> your referring to the

internal doj guidelines? >> yes, that's exactly right, doj policy. >> it is in place to protect the free press, to make sure that prosecutions don't chill the exercise of free press. >> that's just doj policy. there's nothing in the espionage act. leaked prosecutions without actually subpoenaing the reporter, that's happened. >> you can but you can also win murder cases without calling eyewitnesses or without calling the dna expert. why not send a subpoena to the reporter, put them in front of a grand jury, you either answer the question or you're going to be held in contempt and go to jail, which is what i in and out all reporters aspired to anyway? i mean, all of us aspire to be committee chairman. i thought that was the crown jewel in a reporter's resume, to go to jail protecting a source.

give them what they want. >> yeah, there was a reporter who got the crown jewel and spent 70 days in jail. >> 70 days. you can sleep for 70 days. >> >> the easiest way is to get the reporter's phone records, e-mail records. >> if you were the prosecutor -- >> put them in the grand jury. >> what would you do other than that? if you were the prosecutor and your job was to get to the bottom of it as quickly as you could, you would send the subpoena to the reporter, right? >> right. >> and put them in front of a grand jury? >> right and keep in mind, i'm going to defend the existence of that regulation, not necessarily defending the application and how stringently it should be applied. >> i'm not saying every district in the country should be able to subpoena a reporter. i'm not saying that. i'm just saying that something as important and compelling if you want to use a constitutional analysis, you want to talk about the tears of scrutiny, something as compelling as national

security and ron has too ask the attorney general for permission to subpoena a reporter and what may be a very embarrassing fact pattern four months before a general election. how -- you know, we have to have confidence in the outcome and you have to have confidence in the process. so why not do what lots of members of the house and senate have asked and have a special prosecutor? why not do it? i've never had law professors so silent. >> it assumes that the attorney general faced with the request from two highly regarded u.s. attorneys, specifically chosen for this task -- >> well, has reporter -- has the reporter paertd appeared before a grand jury yet? >> if we have, we wouldn't know because grand jury proceedings

are seal. >> the time of the gentleman has expired. gentleman from michigan, mr. conyers. >> thank you, very much. chairman, first of all i went to compliment you on pulling together a stellar panel of witnesses whoe from very very experiences have made this a very important and interesting hearing. i wanted to begin with just two observations. one, i'd like any of you that would like to tell us about anything new and to your perspective of this subject of national security leaks in the law, that have come to your

attention as a result of the discussions that you heard of your fellow panelists and the members of the committee. does anyone have something they would like to add to the record, colonel? >> mr. conyers, when i talk about the fact that you've got to be very careful in revising the espionage act, i say that not only because i was a special agent myself. i've been subject to four congressional investigations, four federal investigations myself based on this article that came out in 2008. it took this committee -- it took the four agencies three years, $2.3 million to exonnerate these people that included myself. when i talk about the fact, the protections of the law, i know what i'm talking about. not only been a special agent but also been a subject so guess what, that's a chilling effect. you never forget that.

i'm here to tell you they should have probably killed me first because they may just succeed. when you defy federal agencies, if you're not right, they are coming after you. i would simply say, when you try and enact legislation, be very careful because you're going right back to philadelphia. >> thank you. >> than consensus i talk about in the statement. mr. wainstein, what would you offer to this discussion, sir? >> you're asking if there's anything new today. the thing that struck me and steve and i were talking about this at the beginning, this is our third hearing on this issue in the last year and a half. we testified in the senate in 2010 about the espionage act and the aftermath of the wikileaks disclosures and today what should we do about the espionage act. there's a real imperative to

look at the legislation and bring it into the modern age because it needs reform. >> professor? >> thank you, congressman. one quick follow up to what he said. congress did this in 2000. both houses passed legislation that would have created an entirely new statute along the lines we discussed earlier, do away with the espionage act for dealing with leakers. the press is a different issue and complicated issue. as toe the question what do we do with government employees who leak, congress solved that problem a decade ago. unfortunately the legislation was vetoed so we're still waiting for more precise instructions on exactly what the scope of liability is for those who leak. >> professor, should we just rewrite the whole subject of security leaks or should we improve on the 1917 version?

>> congressman, i think i would go either further, not only should there be a careful calibrated amendment of the act but congress should see as part of that effort reforming the classifications scheme. because i think congress has historically not exercised the power in the area that i think clearly it has to not leave this up to the executive branch. the atomic energy act of 1954 actually provides detailed classification rules for certain forms of information regarding our nuclear income programs but it's a lone. all of the other classification is done by executive order. if the committee is serious about a workable system going forward, i think that system can't just include the back end sanctions. it has to include the front end rationalization of how we classify national security secrets. >> i ask any of you that would like to submit this for the