it today, but i'd like an evaluation of any of you about the following subjects, watergate and the plumbers, the pentagon papers and dan els burg and the whole concept of prior restraint. i appreciate anything that you could get -- >> we're without objection. the material will be put in the record. we would like to publish the record sometime within the next two years, however, since this is somewhat of a broad request, but do your best. gentlemanwoman from flori-- gen from florida. miss adams. >> do diplomatic cables endanger innocent people? >> i think it certainly can. in the wikileaks there was danger presented to people, particularly those folk in the war zones who helped us out and got outed by those documents made public.

who knows what's happened to some of them. i'm in fear for their lives. >> and colonel, if you could, how would you address to our allies, you know, i'm sure they are concerned with the problems of our intelligence services and loss of confidence and our keeping the ability to keep secrets and such. how would you repair that damage and how would you address that if you could? >> ma'am, i was a young intelligence officer in germany during the church committee hearings back in the '70s. i had sources look at me and say, i'm not going to do that for you because i don't want to see my name on the front page of the new york times, "washington post." i know how they felt. when you have that reluctant sources to believe in the confidence of the united states, that's a huge blow. it takes years to overcome this. i don't think it will be overcome unless and until this congress passes legislation

which makes sensible accommodation. i agree with the professor 100%, you have to address the input as well as the output. we are overclassified and so you try to protect everything and you protect nothing. by the way, the american people are tired of paying the bill for these things. it cost money to classify and money to protect it. we're not doing either thing very well. >> i have to tell you hearing your statements, act of war, kgb, unprecedented consistent access to documents, information that should be classified in -- you would -- you would agree that you think if it was true should have been classified? >> ma'am, there's no question about the fact that what is in sangry's book as well as the front page of the "new york times" is a valid exercise in classification. if that's not classified, nothing is. this affects american security of every single one of us here.

if all of a sudden utilities stop operating, you have him to thank for it. >> you would agree that what you've read, if in fact is true, should have been classified therefore there should be a thorough and complete investigation? >> there absolutely should. i was here when the congress investigated. what really bothers me about this, it's become an agency for american secrets to wind up becoming reporters profits. that's what's happened here. >> and i agree that that should not be happening at the -- i guess at the benefit of the reporters or whomever, they are benefitting by that the detriment of the american people and as you said, we are vulnerable too and this puts our american people at risk. with that i'm going to yield to my colleague, the astute attorney prosecutor.

>> i was hoping to keep that a secret. thank the gentlelady for ousting me as a lawyer. mr. wainstein, i want you to assume that you and another highly decorated former prosecution, former attorney general from the great state of california were appointed special counsel. you would subpoena the reporter and everyone in the situation room, right, before a grand jury? >> i have to go back. it sort of depends on the circumstances as to who would be in the zone of interest. it depends on where the source came from or leak came from. in terms of the reporter, i think special council, i believe they might not be encumbered by the same regulations. so they might be able to go ahead and subpoena the reporter. however, they are going to be sensitive to the first amendment concerns as well and i wouldn't be surprised if special counsel

does exhaust other options -- >> that leads to my final question, which is this, why would the reporter be entitled to any more protection than those in the swas room or someone who worked on the white house staff who may have overheard it? why are we affording -- it's not statutory and the common law is weak as water. why are you giving more protection to a reporter than anyone in the situation room if they were subpoenaed? >> it's purely and this has been on the part of both administrations over time. it's a concern with not chilling the free press. it's a recognition that reporters serve an important function and if we start subpoenaing them in with regularity, they are going to be less energetic in trying to root out information from the government. and reporters serve a very important function of disclosing wrong doing within the government. not necessarily secrets but wrong doing. it's a balancing act and that's the reason why those regulations are there and that's the reason

for the reluctance to suggest nilly willy bring reporters in on a regular basis. i'm in firmly support when the time is right and the circumstances justified to bring the reporter in in a case where there's serious damage to the national. >> gentleman's time has expired. gentlewoman from california, miss chu. >> thank you, mr. chair. i'd like to ask a question to professor sales and see what the professor might think about in afterwards. and it's a follow-up on the issue of the press. it's been suggested by some critics that one way to ebb the flow of classified information is to discourage the press by seeking injunctions or filing charges from courts. both of these approaches raise constitutional concerns as it pertains to restricting free speech. how do we balance the need to keep certain information confidential with the importance of upholding free speech and

freedom of the press? >> thank you congresswoman, if i had an answer i would be a dean instead of a professor. that is the million dollar question. there are compelling values on both sides of the ledger. on one hand the first amendment is a guarantee, not only of individual rights to speak and receive information but also profound civic value in favor of open government debate and democracy. you can't have that without transparency and openness. on the other hand, highly classified and properly classified national security information needs to be kept secret. if it leaks, we can't wiretap osama bin laden and sources get call in the kremlin and killed. how to balance those, equally vital values pulling in both directions, it's impossible to say in the abstract. that can only be resolved in the context of a specific case. in the new york times case, what kind of information is at stake

there? as it turns out the information though classified wasn't that embarrassing anyway. it was embarrassing but it wasn't operational details. it was a history of the u.s. involvement in southeast asia. when balanced against the compelling interest and free speech, it's easy to see why information of that minimal sensitivity, why the balance tilts in favor of the press. but on the other hand, information about the name of the pakistani doctor who assisted us in tracking down osama bin laden and now in jail much more profound harm to the national security. the first amendment equities this that case may look very different. >> i would add i think this ties in with the colloquy with mr. wainstein. i think it's also there to protect the government because i

think the more the government goes after the press, the more the government is seen as not exercising care and diligence in pursuing the press in cases like this, the more the courts will be inclined to step in and protect the press. i think the government builds its credibility for cases along the line professor sales describes where it might have a strong case by not running to the courthouse for a subpoena every single time it looks like there's a national security leak. this balance is impossible to strike in the abstract. the closest it has come, prior restraints are the highest bar and are the most disfavored and after the fact prosecutions are a separate issue that will worry about when we get there. it says a lot about the national security leaks we have weathered over time, that there has never been a prosecution of a member of the press tore violating the

act. we've never had one, i think is actually a stronger testament to striking the balance carefully as anything i could say. >> professor, i wanted to ask about the question of whether we should distinguish pen motivations for leaks. there are lots of different reasons why a leak could occur. some are motivated by government whistle blowing and seeking to raise awareness of an issue or policy. ear leaks indeed would be -- might be motivated by maliciousness. others might be doing it because of flattery. how much consideration should be given to understanding the motivation behind a leak? >> it's a great question. it depends on what we see as the harm. if the harm is the disclosure of the protected information writ large, i think motivation is irrelevant. that's part of the problem with

the espionage, that once the information is out there in a way that could harm national security, it doesn't matter why it's out there. a more carefully tailored statute would take into accounts the kinds of things you suggest and if the idea was to call the attention of americans to an illegal government program, perhaps that would be a way to narrow the focus of the statute. the problem is the way the law is right now, there's no room for that. we could have that conversation there or on the editorial pages but not in the courts. >> gentleman woman's time is expired. mr. gomert. >> we appreciate the witnesses being here, but this department of justice policy to get approval from the ag himself, merits coming back to. you had said the ag policy

protects not only the reporter but also the government. and i keep coming back to so who's protecting the people? the people are the ones that are supposed to be protected? how about who's protecting the soldi soldiers? we have a doj policy that protects the ag and also protects the reporter. who is protecting the navy s.e.a.l.s? who's protecting the one that gave us the information that god bin laden. ? who is protecting those who are helping us? i'm not get being the impression that we have anybody doing that right now. i know at this very table, we had the attorney general of the united states testify before the full committee in his words, there are political dimensions to justice. that goes against everything,

every law professor i've ever heard told me and taught me. it goes against everything every democratic party member teacher i had taught me. thy knew this country and what founded this country and they instilled it in me. and somebody needs to be watching out for the people and for the man that's going to do three decades in prison unless we get firm about stepping up and helping them. now, i would just like to know, if wep don't have a special prosecutor, who is going to stand up and protect knows out there protecting us? and as you're thinking about -- let me tell you, a father of one of the six members told me after -- we don't have to wonder too far, when we saw the vice president on tv saying something

like, how about that s.e.a.l. team six? aren't they great? the father of the one of the s.e.a.l. team members told me his daughter-in-law, their family, got pretty instant military protection because they knew the vice president just outed these guys. when the president picks up and talks about s.e.a.l. team six and the taliban target a helicopter with nearly two dozen of s.e.a.l. team six members, who was out there protecting them when the vice president and president outed s.e.a.l. team six? we know the president can declassify so there could be no prosecution there, but how about in these other cases? there somebody else that you could propose that would actually be looking not out for the government, not out for the reporter but for the people, for those who are trying to protect us other than a special prosecutor? i'd really like to hear who it

is. >> congressman, that explains why doj completed this in the first place. doj recognized that sometimes there could be an appearance of i am propriety where the attorney general area others are responsible for -- >> you left this -- that's why we have this legislation. are you talking about the one that requires the attorney general who believes there are political kmengss to justice? is that the policy you're talking about? >> because of a potential of conflict for interest, there is a mechanic mix for appointing special counsels to give them april measure of independence so thep don't have to get approval from superiors before taken certain investigative steps. i think the example from 2003 is a very good example how this

regulation can work in practice. after it was alleged that senior administration officials -- you're going beyond my question. let me make it point. this same attorney general has appointed or asked for an investigation by an inspector general at doj who got a tape of a conversation with a federal agent and rather than acting like a true inspector general or potential prosecution down the road, she turned it over to the federal agent you better listen to this before i ask you quesz. we've got a real problem in the department of justice if that's the kind of special investigations we get. my time is up. i yield back. >> the chair will say that after he recognize the gentleman from georgia, mr. johnson, he will recognize himself for the last series of questions. the gentleman from georgia, mr. johnson. >> thank you, mr. chairman. i'm just wondering where was the

moral and dignity and outrage and the like that has been displayed before us this morning? when was that when valerie plame, a cia agent, covert cia agent was outed by the previous administration? where was the indignant outrage. >> will the gentleman yield? he was outraged richard armitage was not prosecuted. he should have been and i still hope he will be for outing her. >> reclaiming my time. i'm glad to know there was at least one of my colleagues on the other side of the aisle that voiced indig nation but i think you may have been by yourself on that. and seems like there was

protective covering that was hoisted upon the actors in that drama. by my colleagues on the other side, but now, we want to be more indignant than i think is required. sometimes we have good leaks and sometimes bad leaks. isn't that correct abu ghraib was a good leak. there are some leaks that are bad, gentleman generally agree? i see heads shaking, going up and down so i think that means yes in america, is that correct? >> no, sir. >> that is not correct? >> all right. >> sir do not tell me such a thing as a good leak -- >> i am guess it depends on where you're setting though. >> in a war flow of information

is a flow of sewage because they can lost lives. >> you have good leaks and bad leaks, i don't think you can disagree with that. wep needed to learn about abu ghraib. so that we could correct what was going on over there. and the problem is that, you know, sometimes our laws can go too far so as to chilling free speech. and i think that's a conflict that that we probably need to adjust here. those memos, torture memos written by dputty assistant attorney general john yu advice the u.s. government that acts

widely regarded as torture might be legally permissionable under an expansive interpretation of presidential authority. at least one of these memos was leaked to the public while others were obtained through litigation. . the memos were widely criticized as legally flawed and morally indefensible. president obama repudiated the opinions in early 2009. the source of the leak for those memos were never found. and we have leaks that have occurred throughout every administration that has served in america. is there any particular reason why we should be so draw mattically concerned about the recent spad of leaks that have occurred? >> if i could congressman, you

put your finger on an interesting point, whether there are good leaks or bad leaks. some people say we have to allow leaks because that's the only way information about wrong doing within the government is going to get surfaced. but that's not the case. now congress in its wisdom has passed a series of whistle blower protection laws which say if you're a whistle blower, in other words you're a person within the government and see something that looks like waste, fraud, abuse or criminal conduct, you can take that information up and intelligence community take it up to the intelligence committees in congress. the point being there's an avenue for surfacing this information other than going to the press now. the argument that you need to have press leaks in order to allow that is really not the case. >> i got you. do the whistle blower laws take precedence over the espionage statutes? >> they do in effect.

professor has spoken to this in today's testimony, there's some tension there. the notion is if you follow as goflt employee, protection procedure and disclose things to the right people -- >> you will not be prosecuted? >> that's the idea. they have to be sufficiently -- >> is that in the law? >> the gentlemen's time has expired. the chair recognizes himself for five minutes for the final questions. let me point out in the case of the valerie plame leak, the leak was by an administration supporter and there was a special counsel appointed, patrick fitzgerald for the northern district of illinois. there were very controversial prosecutions involved which resulted in some convictions. i think we all know who was convicted. now the other thing is that i agree with colonel allard

there's no such thing as a good leak. a good leak is one that you will agree who gets damage in the national security realm and bad leak is that you disagree with it. nobody should get damaged in the national security realm by a leak and the thing is if somebody is engaged in misconduct, the whistleblower protection acts do provide for protection of a whistle blower who sends the information up the chain of command to people who have been cleared, including members of the senate and house permanent select committee on intelligence. now having said all of that, this is a very difficult area to legs late in. and i don't think that we have the time left in this congress to be able to deal with the various issues. first, i agree with professor

vladeck, the espionage act is outdated. the kind of espionage this country faces now is not the type that german spies did in the march to world war i. i will point out there were a whole package of laws that wood row wilson got passed which resulted in one of my predecessors as the representative of the fifth district of wisconsin, getting excluded from congress twice, getting reee l ee leee lek lekt constituency that mr. wilson decided -- the constituency that decided that mr. wilson chose the wrong side to fight for in the first world war and spent in mim as the sitting member of congress in jail. so it seems to me the history of those kinds of acts mean we have to update them. i am not for having an official

secrets act like occurs in the united kingdom. but i am for revising standards for classification. and there ought to be some type of almost strict liability on someone who deliberately leaks something that he or she knows to be classified to somebody who does not have a security classification. and finally, and this is the question that i would like to ask, is -- and we'll start with you mr. wainstein. are there any circumstances where putting a reporter in jail for publisher a leak are per missible under the first amendment? >> i believe so. i believe actually you can look at the iconic case speaking of midway, where the chicago tribune actually published the

fact we had broken the japanese code in 1942 which could have been did he have vevastating to effort. under certain circumstances you could see that somebody done that with impunity and gone ahead and published it, it would be worthy of prosecution and punishment. >> how about prosecution and punishment for those that disclose the s.e.a.l. team six that actually went in and too long out bin laden. is that the same thing? >> it depends on facts and questions. i couldn't opine on it. it's hard for me to know that s.e.a.l. team 6 operates in secret, whether it suffers the same damage or not and the intent behind the leak. that's a serious leak though. >> here we're talking 70 years after the fact of the leak on the japanese codes on midway,

perhaps 70 years from now we'll talk in this committee the leaks on s.e.a.l. team six, which emphasizes the fact we need to revise the laws. >> the distinction between punishing and prosecuting the newspaper reporter that's a very different issue from prosecutor and punishing the leaker. and -- okay. >> your question as to whether you should put the reporter in jail, that's a bigger step. >> okay. >> professor sales and then my time is already up. but answer the question. >> gladly. i think the answer is yes,comma it depends, there are circumstances in which it would be constitutionally per missible to hold reporters to the same criminal law standards that every other citizen is expected to follow. in fact, the supreme court and

peg papers case recognizes there may be circumstances in which it is exhibits with the first amendment to apply the terms of the espionage act to reporters that publish classified information. >> thank you very much. i'd like to thank all of the witnesses for appearing. i think what is a very interesting hearing that has a lot of interrelated and difficult policy questions involved. i frankly think in the next congress this committee should take a whack at trying to put something together that updates the law and attempts to balance competing interest and how they interrelate with each other. recognizing the fact that the at least at the beginning of this process, everybody will come in and tell against something that is in the law. but i think it is unacceptable to keep relying on the 1917 act

to deal with the issue of leaks and as well as the issue of espionage. because espionage now is different than the first world war. thank you all for coming and without objection, the hearing is adjourned. a hearing on capitol hill earlier today, we're going live to the agriculture committee, the members are returning after votes on the house floor where the house approved a republican bill to repeal the 2010 health care law. with the vote of 244 to 185. with five democrats voting for the repeal. members continue to make line by line changes to the farm and attrition bill. some republicans on t