led to the passage of a bill in 1996. the same thing may be happening now. there are a lot of republican governors who as a result of the election last month have significantly -- significant majorities in their legislatures and they will be trying to put in place policies to deal with the economy to deal with state budgets that are strained tremendously and facing significant shortfalls. they will deal with education reform. they can provide some models of republican governance that republicans may try to copy and they will have a freer hand to do so in the states because of their majorities. the public employee union issue is a very big and brewing issue in the states, particularly because states are so strapped financially. i was at the republican governors association last month in san diego and talked to several new governors, john

kasich from ohio, rick snyder from michigan and scott walker from wisconsin. all three talked about the issue of public employee compensation. . . do something about it. i think public employee unions are more on the defense's -- the defense of that i can recall in long time.a host: what does the president's overall job approval rating tell you? guest: there has not been much movement for many months. he is somewhere between 45% and 50%. in some polls he is slightly more positive than negative. he is not where the worst of our present have been in terms of

public opinion. he will want to try to move that up. host: 71% of americans have been hurt by th recession. guest: there was an interesting finding in t nbc wall street -- in b.c. "the wall street journal" paul. -- nbc-"the wall street journal" poll. the question was asked, what was your defining moment many peopl said 9/11. this time, more people said that it was the recession. but the people out of work, it was a terrible poll. fowhat has happened with 401k's and dow security, this is a country full of people who --

and job security, this is a country who feel less secure than they were a few years ago. host: people were asked who do you trust to help middle-class people and help with health care reform. the president has an advantage of 53% to 38%. guest: there is an overarching question that we ask. it is on the big problems facing the country and do you trust president obama or the republicans inongress. president obama had a narrow vantage. neither president obama our congressional republicans have the upper hand at this point in the eyes of the public. in 1994, republicans in congress had a more significant advantage over president clinton on a

number of thoseuestions. after the 2006 elections when the democrats took of congress when president bush was sti in office, democrats in congress had a significant advantage over president bush on those same questions. even though the republicans won big, they have not one bank the hearts and minds. host: it is 77 degrees in hawaii this morning with the first family is, but the president is still here in whington. guest: the president will not get to his favorite vacation place for a while. caller: i would like to thank you for your insights this holiday season. i would like to make a comment before my question. i commend you for working for "the washington post" because it is the last newspaper that i read that is considered to

paternalism in the united states. you were speaking about how you were going to have the dates coming up and no one has declared to be running for office or present during 2012. we have a lot of republican candidates or possible candidates who are pundits for fox news. i wanted to find out -- i know there is a breach of contract if they declare that they are going to run for the presidency. i wanted to find out from you a little bit more about that and if you know anything about it or the history of that in the united states. has it been an ongoing issue or is it something new? we have truly professional politicians now working on news channels and then deciding to declare at the last minute so they can continue to rake in as much cash as possible.

host: rick sanrum is under contract at fox news. john bolton is looking at a 2012 presidential bid. sarah palin is a consultant on the fox news channel. newt gingrich is also there. he has appeared on this network. the others are not allowed to. guest: this is not a brand new issues. it is much bigger now than it used to be. when pat buchanan ran for president in 1992, he was on cnn and had to disassociate himself with cnn as i recall. we have never seen this many people -- it is a good question. part of thessue is the money. the more appointed issue is the

exposure. these politicians, at this point in a presidential cycle, will enjoy a more exposure stay on for the time being as fox news coributors, then they would if they declared their candidacies and had to make their way as politicians. i think there i a combination of the financial incentives and also the desire to stay as visible as they can before an audience that is likely to play a significant role in the nomination process of the republican party. host: one of the under the radar names is someone who worked in the bush administration, mitch daniels. somee on our twitter pate said that mitch daniels will be the guy. -- twitter lapage -- twitter page believes mitch daniels will

be the guy. he is a no-nonsense politician. he is seriously looking at whether he is going to run. some people i have talked to recently who are convinced he is going to run -- he has said he is goingo wait until his legislative session finishes in the spring to make a final decision. he is one of a number of people looking at it. the closest equivalent is govern a haley barbour of mississippi. he was a political director in the reagan white house. he was active in washington in different ways. he and mitch daniels have left washington and have become

governors of their states and have developed wreckers that there will take on the campaign -- that they will take on the campaign trail. host: and anotheviewer says that john thune is another possibility. guest: it seems that he is creeping toward the starting gate. he has a lot of attitudes. he looks like he could be a potentially strong candidat i think there are questions about john thune as there are out all of these candidates. all of us have got arnd to talk t people are looking at this race or strategists who are involved in it. it is a notion that for every candidate's strand, there seems

to be a weakness. you can go down the list and say so and so hashis problem and so when so has that problem. everybody looking at this has concluded that this race may be as wide open as any we have seen on the republican side for long time. host: we have a caller on our line for democrats. caller: thank you. i hope i will be able to finish my point. thank you for c-span. i think i will become addicted to it. president obama is a centrist. when his liberal friends assumed he would be more on their side, they were shocked that he ran the harvard law review from the metal. as we talk about these he ran the harvard law review frothe middle. president obama will be the next

president. i wish you would look at mitt romney and proposition 8 in california and who was behind it. there is a movie called "to the mormon prophecy." host: will religion be an issue for mitt romney? guest: possibly. it was a factor in his campaign the last time. he gave apeech in december of 2007 in which he tried to put the issue to the side. i do not think it ever got a full airing. it is a potential issue. we do not know how serious it will be. there are other issues he has got to deal with beyond that. we may see that play out in some of the states with evangelics questioning the govern a's

religion. governor's religion. est: john bolton is one of the most provocative conrvatives out there. he as a prolific writer. almost everything he writes has a considerable amount of edge to it. he has been tough on president obama on foreign policy. if he gets into the race, i think you would have to say realistically that he is a long shot for the nomination having neverun for any nomination before and not having any obvious financial network to be able to attack -- be able to tap into. he will add something to the debate. host: weave someone on the

republican line. good morning. caller: i have a cole of questions. i picked up a lot of newspapers and a lot of different media. i am a conservativand i what fox, i slide over here and do it as nbc. i read your paper and "the wall street journal" and usa today. does this feel at all to you that the liberal media is not accepting what happened in the last election? in m opinion, you look at the statistics as far as who turned out within the republican party, what age groups turned out, compared to democrats, it looks like our side of this thing is more energized. i can tell you i almost feel more energy now that i felt in

2008 when we were running with mccain and sarah palin. with the primaries and the debates, and everything lost its luster on the republican side after a while. guest: there is no question that there is more energy within the republican party then there is in the democratic party now. we saw that play out in the midterm elections. the question is what will the electorate look like in 2012 as opposed to 2010 and 2008? from the hisry of presidential elections, the electorate is bigger and broader in a presidential race than it is in the midterms. the party that is most in its size in the midterms tends to do best. i do not think there are any illusions in the media as to what happened in november. when one party wins 63 hoe

seats, the most since 1938, the outcome of the election is obvious and clear and the message is clear. in comparison to some previous elections, this was a protest election born out of the anger and dissatisfaction we see in the country. it was not a wholehearted endorsement of the republican party. the republicans now have a great opportunity if they can show here on capitol hill and in the states that they have answers to the problems people are worried aut, they will be in much better shape than in 2012 with the possibility of winning. incumbent presidents are difficult to defeat. that is the history of it. whether it is a republican president or a democratic president. if you are an incumbent president, you tend to be the favorite. at this point, that is what

president ama is counting on and hoping for. he has a lot of work to do to make that happen, particularly because every forecast we see for the economy shows a slow recovery and a slow decline in unemployment. he may be facing reelection in an economy where the unemployment rate is above 8% or still above 8%. that is a tough environment to run in. host: there has been speculation that he could face a primary challenge like president carter in 1980. what are the kinds? --what are the odds. ? >> i think they are low. if he gets farther away from the base, they could increase.

if you look at our roast meat -- all or most recent poll, the agreement that he cut with republicans on the tax bill had widespread report across -- widespread support among a wide range of groups. they did not like parts of it, but they like the compromise. his government -- his compromise on afghanistan is upside down. there are significantly more afghanistan -- there are significantly more liberals who think the war in afghanistan is not worth fighting. that is not a top line issue right now. at this point, i would say that the odds are low that he would face a primary challenge, but it is not under it -- not out of

the question. host: fox news out with its own survey this weekend. two opinion dynamics. jay is joining us on the independent line. caller: can you hear me? guest: yes. caller: i have a question for you about medical care. i have decided to ask a different question instead. someone once said that when it comes to politics, some reach a point where they have to betray their country or the electorate. do you think we are going to elect a politician who betrays the electorate and not his country? hosall of these businesses are closed up and everybody expects the fed to help them out. we need to help out each other.

where is our camaraderie in this country? i would like to know your personal opinion, dan balz. guest: it is a great question, jay. you are getting at the longing, the yearning, and the dese in this country for a genuine leadership and leadership that is able to bring the country together. as i said earlier, it is difficult in this environment for any politician to be able to do that. that is for reasons of ideological divisions and because of the general nature of the political environment and public opinion today. i think your point is an important one. how do you get beyond the pettiness of some of the debates going on?

three-point scoring that many believe is the primary motivator of many politicians in washinon. we need to get to policies that both sides can agree on. nobody has the magic answer for how toevive this economy. we are in something more than the classic cyclical up and down or down and up. we are going through some huge structural changes in this economy because of globalization and other things. what we went through in 2008 brought all of that to a head. a lot of different things have been tried. there will be some new things tried with this new congress and the present. there is no guarantee those are going to make an instant or significant difference. the president and the politicians preached patience. i think that when they are

lacking real solutions, that is what they hope for. republicans are impatient for good reasons. [captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute] host: your newspaper this morning called it shocking and reyer, the senate voted on-- -- shocking and rare, the senate vote on the tax cuts. the president addressed it yesterday in his weekly address. >> this is about the safety and security of america. that is why this treaty is supported by president bill clinton and president george w. bush. it is supported by our nato allies and the learship of the

united states military. the vice chairman of the joint chiefs of staff said this week that the military needs this treaty and they need it badly. that is why every president since ronald reagan has pursued a tree like the s.t.a.r.t. treaty. everyone -- pursued a treaty like the s.t.a.r.t. treaty. host: the s.t.a.r.t. treaty is the next big issue on the agenda. guest: it looks like the president is likely to win that fight. he will have been successful and productive in a lame-duck session. he wanted to get an agreement on the british-era tax cuts. he was able to do that. -- on the bush-era tax cut. he was able to do that. if he gets the startreaty, which was a significant priority of his or the lame duck -- for

the lame duck session, he will be able to go on vacation. host: to you have another book in you? guest: out there is another book. there is a >> tomorrow on "washington journal" andrew fieldhouse. then a discussion with former assistant homeland security secretary stewart baker. we'll also talk about changes in the tax bill favorable to certain interest groups with stephen ellis from taxpayers for common sense.

>> airing tonight at 6:30, 9:30, and 12:30 on c-span, elena kagan in her first interview since joining the court. the interview took place in justice kagan's temporary chambers in the supreme court. >> i think i became a lawyer for all the wrong reasons. i used to tell people all the time, don't go to law school just because you don't know what else to do. the truth was, that's why i went to law school. i wasn't sure what else i wanted to do. i believed all these things about keeping your options open. i wasn't at all sure i wanted to practice law when i started law school, but i thought, well, what could be wrong with having a law degree and then deciding. i got to law school, and what i was amazed to find was that i

absolutely loved law school and studying law in a way that i don't think i had loved any other part of my academic experience. i had always been a good student, but i haven't ever felt that kind of just passion for a subject matter. i liked thinking about law. i liked that law was something which was both an intellectual challenge but also had real-world consequences, so that you could really think about using what you were using in order to make the world a better place, in order to make people's lives better. so i found it endlessly interesting and challenging, and, you know, in the end i think i went to law school for the wrong reasons, but i was very glad i got there. >> the full interview airs this evening at 6:30, 9:30, and dwelf :30 eastern on c-span.

>> next a highs judiciary hearing under whether wikileaks founder julian assange should be charged with espionage. this is 3:15. we welcome everyone here to the

hearing. in the texas versus johnson case in 1989, the supreme cour 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 oan idea simply because society finds the idea itself offensive or disagreele. 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 sart 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 everne 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 hows, 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 amelt 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. in2005, "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 mightresentation that i liked her categorical need for high fences around a small graveyard. but i'm saying, are you saying this administration isocated

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 wrongr damaging to the country. as long as there've been governments, there 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 informationserves no legitimate purpose. much attention has been given to this most recent wikileaks release. manyismiss 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 bog, 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 ast time that we have an opportunity to recognize our good friend bill

delahunt of massachusts. he's served the committee and a very important wayn real to him at this time. >> well, thank you, mr. chairman. you know, as you are are, i also served on the florida senate committee a 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 beer, ere 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 th 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 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 proce itself is arca. 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 ch secrecy and overclassification within the executive branch can i tink it puts american democracy at risk. and with that, i yield back. >> thank you, bill. i am pleased now to turn to howard cob 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 bills the one member i could clearly understand and spite that access over there. but truly, he's en a good friend and again, just such a valuable member to the house. and i'm hoping that of course he made the dcision 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 polical 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 u our security to keep hackers from getting into it.

and why did this occur? who allowed it to occur at what went wrong t make the situation now go worldwide? it's like bunch of folks at the bank decided to hold a christmas paty 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 y 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 kowingly 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 her individuals or organizations who my public or otherwise disseminate the tuation 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 sition to question judgments which hold the elected representatives accountable. government secrecy, although rely 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 abut its actions or policies in these the considable 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 cann 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 ak 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 a 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 agnst 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 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 situatio, the most obvious and correct way for government to prevent the danger is by suring 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 typeto 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 disminating information because the government itself failed to ensure comment by anon law-abiding priority. this may seem a disorderly

situation but they ifect come up with a good solution. we grant the government too much power to punish those who disseminate information way was to create a sacrificef public liberation. the grant the government too little power to control confidentiality source and was too great a sacrifice of secrecy. the solution isfor 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 e 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 net witness 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 neral in this well known for s 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 re 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 dropp 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 d 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 th re de manding congress to send them is 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 aist an adversary. there needs to be allowed with the mishandling of properly classified information and against those three impornt national security principals

meet the balance of protect team constitutional rights. the problem is that the current law lumps all that i've sai 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 appy 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 iformation, 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 wouldroperly 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 secury interests of the united states and other

dangerous times. over the past few decades, courts have grappl how best to apply the words of the law to the situations. in theipac 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 inure? 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 differen 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 persois 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 th 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 knowto the committee as well. he testified here last year and he also testified a 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 ti. [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, theres 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. threatosed 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 imptant 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 exploi 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 constitional 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 ofhe 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 prosution 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

un users encrypted chop boxes specifically designed toollect that information and circumvent the law. while the media typically publishes only those piece of sensitive information that relates to a particular stoy, which he mixed idiscriminately releases huge droves of materials. by clearly showing how wikileaks is fundamentally diffent, 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 ct. i'll aee to the statute is outdated and could use revision on a number of points such as verifyi 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 deide whether we need new statutory tools to deal with this new threat. i commend e 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 espione 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. schoefeld comment senior fellow at the two, well-known author of necessary secret and national security, the dia 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 th 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 "the new york times" in 1971. pitting officials at the obama administration had deprived the damage, ranking reblicans and democrats in congress have called to the prosecution of lian assange unr the espionage act. whether or not the administration takes the collection against mr. assange come we should not lose sig 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 inhe 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 b 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 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 unsatisfacry state of affairs that we began to pay a high price for t. there were five things we need to do in my judgment. l of them interlinked. first, we need to devote more attention and resources to declassification of combating overclassification. her secret for more national secrecy poli 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 prosecu 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 thisith nitoring program. and finally, we sometimes need to take legal action. we have never d a prosit keeshan of immediate outlet in our history, although we came close during world war ii when the "chigo 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, ether it is or is not a news organization is certainly exhibited such reckless disregard. thanks in part tothe 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 pressor of law at american university. he was partof the legal team that successfully one honduran versus rumsfeld, challengg 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 ch 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 to briefly identified by perweights in which the espionage act as currently written to create problematic uncertainty and suggest potential immediacy of we addressing these facts. ..

it is to be used -- not be as to the damage of the united states. no statute deals with the effects of disclosing national defence information and the non- espionage cases. the government has been forced to shoehorn into the espionage act three distinct classes of cases that raise three sets of issues. classic espionage elite to and the intentional or redistribution of national defence information by private information. i doubt the congress that drafted the espionage act in the midst of a world war i meant for this to cover every category equally. the espionage act does not focus solely on the initial party who wrongfully discloses national

defense information but applies in turn to anyone who knowingly disseminates or retains national defence information without immediately returning the material to the government officer authorized to approve -- to assess it. this draw the distinction between the recipient of the lead for the 100th person to redistribute, retransmit, or retain the national defense information that by that point is already in the public domain. isilon is the punitive defendant knows that their conduct is lawful, they are not understanding the real facts that by that point the proverbial cat is long since out of the bag. 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 docunts could threaten national security and devotee will it leaves open the possibility is thcan be coicted 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 reqres the government to demonstratthe 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 digal age is clear at the very least that nothing in the text satute 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 whtle-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 ordeto be kept secret in the interest of national defense or the conduct of foreign affairs. similar language appears in mst 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 deail because it has been mentioned by my colleagues the problem of the over classification shou there be a defense for improper classification how we actually attack the elephant inthe 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 come? 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 d specifically provide either the provision does or does not covered by public distribution of such information includingy the oppressed. if this committee and this body does decide to include print publications, my own view is the person and requires t 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 dea 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 hing debates on x 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 thgovernment typically does this not to kill anybody or firebombs something, but to go right to the second major point i want o make toay, 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 informatn sharing with the american people becau 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 2,00 tables e 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 havetopped 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 eltdown from the wikileaks. there's a lot of rhetoric but robert gates, who ought to know, he served every president in my lifetime as fa 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 th chinese bureau members to get exposed every now and then. that might be a long-term goal of american national securityo policy out to be about. finally, there is not a set of

wikiterrorists. i wish every terrorist group in the world would retire ambassador itheir local town. you know, a day or week bere 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 ths? we wou 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 rightow 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 montly 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 importa and timely hearing. a lot of interesting and good points have been made and there is no point for redundancy. i would liketo mention that we ought to look at the issue of government seccy 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 any others. ruth fine has decried this deivation of information on the part of by the insipid branch, veazey converse as a principal cause of weakening at 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 merican 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 lackf secuty 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 petrated accountable. the destruction also is a way from the lack of accountability for the executive branch officials who suppress information. how many times he 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 bonapar, 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 pressurto 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 politica 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 i 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 tsenator lieberman's precipitous urging for holderto 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 ging serious consideration, but at the end of the day, i think it could do more harm to the national security properly understood thanetting 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, th vast majority are reprehensible use of people employed in taxpayer dollars, the vast majority should have been disclosed if not never stated for th 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 itselturned inside out tens of thousands of its internal documents will be exposed on wikileaks dhaa 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 governme 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 ouof 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 damaing a dissemination ofaccomplished 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 develong a bill of attainder mind set if i may use that metaphor. if it's okay for the obama administration officialsto 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 waynot for developingqual 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 ou've be 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 th 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 difficul 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 gatheringinformation from the government by whatever

source and disseminating it to the public islassic 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 wveroken the japanese code. the japanese had paid attention, millions of lives, including many of our parents, might have been lost. they didn't of coursand the end of not prosecuting the case but many or most of us agree thatis 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 fficiently 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 cose 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 i is a viable possibility. >> yes? >> thank you, mr. chairman. on the disssion 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 whave 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 susct 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 on

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 ou will run into a really difficult problems not only on the media slippery slope, but on speech, and it may go to motivation, it ma go to this fact is over classification. i pointed out in my testimony in their written statementthat one of the most striking things about the tables on the record is the fact that so many of the confidential and secret onc 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 laureatentitled 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 tat 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 wheree 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 astralia'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 thsands 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 ere are people in peru, ken yep, australia, iceland, swzerland and other countries who have benefited from wikileaks disclosures of rampant corruption and injutice in those countries. >> without objection, your

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

>> the committee will come to order. before yielding to bob goodlatte, i wanted to have just two minutes further for any of you who wanted to add to the discussion we were in a mutually in terms of exchanging ideas and views on comments made by other panelists.

>> mr. chairman, i think we can to complete and total consensus. [laughter] >> yes, right. as my voice this to me, you're right, dad. [laughter] >> anybody want to weigh in? >> i'm looking at cannes because we had this argument during the break. >> that's right but we kissed and made up. [laughter] >> i will jump in on one point which is everybody's talked of the problem of over classification and i just want to address that. i agree that is the problem, no question about it. i actually applaud the president for his having undertaken an effort to review the classification process in place and try to, you know, get more transparency and reduce the classification of information. i guess my point would be this though, that is a problem, and it's a problem in terms of the reality because it chokes off the flow of information that

should go out to the public, information that is insensitive but also it is a problem of credibility because the government has less credibility and says these are secrets and will be some fraction of them really are. but keep in mind that is one issue and that doesn't completely solve this problem, so while yes, we need to address that, the question of thing that is out there now that has imposed by wikileaks is what we do about organizations out there whose purpose is to try to get secrets? so i guess my -- i think of this let me be a football team, a defensive coach a football team is trying hard to -- it doesn't defend against the run. well you don't just fix that by going out and getting a good defensive end, you also probably need a good middle linebacker, so if you look at dealing with the prosecution and defense and that's fine, that helps but you're also going to need a good linebacker to try to stop the run so my point is we also need to deal with what do we do with these organizations that are kind of new out there on the

scene like wikileaks but are doing the best to get our secrets out there. >> nothing like a sports analogy when we are in a complex matter. well, i would like now to turn to our good friend, bob goodlatte, who is a senior member of this committee and serves with great extinction. >> thank you, mr. chairman and for holding this hearing. i think this is a very important subject, and this panel has been excellent in offering us a number of perspectives about this and i don't know that we will get quite the unity that mr. blanton claim, but nonetheless i still think there's an increasing agreement on what are the problems and what are the limited solutions we have. i would say first of all the lack of security safeguards for protecting classified material is stunningly poor and this problem is enhanced by the use of modern technology that

spreads it around in places where i'm sure many of the people what some think of secret don't even know who is responsible for keeping the secret for them and that is clearly the case where though one member of the u.s. army having access to it and apparently turning over hundreds of thousands of documents. second, i second those who have called for greater openness. there are without a doubt many things are classified that should not be and we have a problem i think with out of control expansion of what are being deemed secrets and for reasons that are not legitimate in terms of somebody wanting to do a little cya instead of protecting the interest of the united states. finally, we want to make sure that we are not suppressing

information that should be made public. nonetheless, it causes great concern to me than any outside organization would be put in the position of being the arbiter of what among hundreds of thousands of documents should be deemed secret and therefore not put up on the internet and what should not. they don't have the professional ability to do that. they don't know the far reaching consequences that this will have on people's lives or on the national interest of this country, nor do i get the impression the leaders of this organization indeed care about what are the national interests of the united states, so we have to address this first and foremost but figuring out how to safeguard the things that are truly secret and release the is ourselves that we should be making public and should be disclosing, so i guess first my question to go to mr. wainstein first, but please call anybody

else to join in, in terms of talking about how we change the classification process, what can we in the congress to legislate for? it seems to me this is primarily a function of the executive branch, but it very much concerns me that the executive branch has abused its power and we need to change it, but without some standard measure of how these things are classified. would you recommend the con chris do to reassert our authority and get the classification process brought under control? >> i appreciate the question, sir. i guess as you pointed out, the first thing to keep in mind is classification is within the prerogative of the expected, so folks in the executive branch to decide what is classified and what shouldn't be and tall sort of baliles down to the executives responsibility to protect national security.

that doesn't mean, however, congress doesn't have a role. in fact i think we were talking about this on the brigety there is a silver lining to this issue coming out now about wikileaks that there might be some changes to the espionage act and not only does it i think heighten people's awareness of this tension between security and openness but also think it might heighten people's awareness of the fact there is over classification and congress i think can play an important role in emphasizing when portended is to the executive branch that over classification be gotten under control especially if the executive branch wants some legislation out of congress as it relates to the espionage act but say. the president, as i say one of his act was early on in the spring last year was to set up a task force and issue an executive order covering over classification.

so my sense is there is a sincere effort under way. keep in mind however that while there are i think -- too let me interrupt you because i have a limited amount of time and people i want to comment but if you have specific ideas about things the congress ought to do in this regard, we welcome them and i would ask the other member of the panel. >> i don't accept this notion that this is in the exit of branch as a prerogative. seems to me the way in which the classification -- >> i agree that it's not but i am looking for practical ways to solve the problem -- >> do you have a suggestion for us to take legislative flee or through appropriations or whatever that would help us reassert our authority in this area we are interested. that is on a bipartisan basis. >> i would say for when the legislation that provided, for instance, the mo document information may be classified as an objection is made that the harm of disclosure out ways -- the heart of disclosure outweighs the benefits of

disclosure as a statutory matter that will then say that no one could be punished for revealing information that is misclassify under that standard. we would go a long way to clarify what the classification standards are. >> what if they're seems to be some willful less and a deliberate intention to misclassify information that should be classified? >> make it a crime. >> i have to tactical things better in the amendment to the bill. first, i have already stated which is to make sure we distinguish among the various offenses said the mishandling of properly classified information is included, therefore it is a distinguishing between the various forms of conduct so congress is basically telling the executive branch you're not going to be able to prosecute people at the same level for the very best kind of offenses but the second is to do with the case law often says, be clear that there can be a defense given the intent of the potential criminal defendant for

raising the fact something was improperly classified in the first instance. >> anyone else? >> just a couple suggestions, congressman. one is years ago i would say the u.s. government was declassifying anything it knows the soviets know. to keep it from the american people and they knew a lot about, with the soviets know. but i guess my point that one of the major players in the whole classification issue is the congress itself, and when the congress allows itself to be stratified between the intelligence committees getting classified information and no one else in congress getting it that is the way the executive branch co-op's the congressional role and increases the arbor to reclassification discretion of the executive branch so that is something to look into the end of the second is that we should look back at what has been disclosed that was classified to

educate ourselves to be able to more precisely respond to your question because it is so many things have been declassified leader or leaked that were observed to the classified and that is a good tutorial to develop the kind of nuance that your question and false. >> thank you. mr. blanton? >> the congress has an extraordinary track record pushing back against over classification. the greatest success the last 15 years as the nazi war crimes at the post of millions of pages of documents that should not have been kept secret that showed how we haulier and sheltered nazis in our own country. congress ordered that and built the agency working group that ran. you should apply the same standards that were in that statute to all historical records anything more than 25-years-old which under the executive order is supposed to be treated differently. apply the nazi process, but the working group with some power behind it to make it work.

you could break loose the huge backlog of those old secrets as one of the biggest credibility problems and the current system. you could make a huge difference and in power the classification board that has appointees from the executive of the legislative branch to not just make recommendations for changing the system but really even order the release to beat could provide new funding for the national declassification center which is at the national archives just started in may. they hired a career cia employee to help oversee. their faith in backlogs of sufficient been outlawed for hundred years ago. the can't even begin to get their arms are not available oversight and i think it would help. and finally, to pick up on rauf meter's comment, currently the executive branch treats requests for information from congress only the chair of the committees are treated as constitutional requests for information. if you are a member, not the chair your request is treated as if it were an information request. so join the line on the and in.

i'm sorry. you've got a high your constitutional duty than i do and you ought to have the right as all members of the congress ought to be treated the way the chair of the committee are treated today. >> really quickly i would just point to one more example of congress taking an active role in this area which is the atomic energy act of 1954. you know, we are not talking about historical records, we are talking about i daresay what we would all agree are our important national security secrets and congress didn't leave it to the executive congress provided details statutory procedures to be followed and indeed to be punished in the breach. >> these are all very good. one other point, the allegation has been made and i again i don't know the truth of the wikileaks is an organization that has not only released information on the internet that has engaged in the solicitation, the facilitation, maybe even the

payment of paper or affirmation or pay to facilitate the acquisition of information but to any of you have any thoughts on whether there is a need to change the law in this area or is there adequate law right now against what most people would agree would cross the line between reporting and espionage? >> first of all there is a lot more we need to know, congressman. >> i know, but for example, obviously amazon, visa, mastercard with the denial of service in recent weeks, so wikileaks was pressured by the u.s. government. the u.s. government did not say cut off "the new york times" or "the washington post", and that is the tip of an iceberg.

>> but it doesn't answer my question which it already exceeded the time but does anybody have the comment on whether or not we need to strengthen the law regarding the kind of things that were done or alleged to have been done by wikileaks to okwu disinformation or any other from the government and i would contrast, the acquirer from the corporation. >> i don't know if wikileaks did try to pay for the information but if there were any complicity between wikileaks and the person who actually pulled the information out of the government then wikileaks could be charged as an acre or a better work conspirator of the leaked. that person then wikileaks wouldn't enjoy whatever additional first amendment protections they have as a news organization rather the are charged as a conspirator or were the person that is of the leak. it would be easy to meet because there would be charged like the

wikileaks and those charged by the alumni demonstration as was problematic because it isn't -- they are not going to be charged as a press organization, rather as someone who is composite -- >> that is the current law, correct? >> i agree, all i would add as it is not be as problematic would certainly be as unprecedented. tsp not act hasn't been used to my knowledge to prosecute someone on a liability. co-conspirator etc. it's been supported i do think we would still wait on some of the issues you heard us discard this morning about applying the integrated statute to the small full fury. >> thank you, mr. chairman. >> thank you very much. we now turn to the gentleman from virginia, the chairman of the subcommittee on crime, bobby scott. >> thank you, mr. chairman and for calling this hearing. you know, one of the problems in

pressing criminal law is in of the challenges if we pass a criminal law we are expected to be challenged on the constitutionality that would have to be consistent with the president and we of the pentagon papers the alerts us to the fact that anything we do in this area is going to be problematic. the law also has to be precise. it can't be subjective after the fact, well in this case i think it is bad enough to prosecute the conduct to be prescribed it has to be precise. i am inclined to think what happened in the wikileaks situation ought to be eagle, but i think we have a consensus on the panel if nothing else that we ought to take our time and get this thing done right. let me just ask, i am going to talk about a couple of issues and ask everybody to respond to them one of which my colleague from virginia just talked about and that this should it matter

what you helped to obtain the information or you got it slipped under the door you don't have anything to do with it in terms of your publication, and does it matter if you knew full well that it was classified and should make a difference that it should or should not have been classified? second, we have heard a lot about the intent to harm or whether that did harm. that is going to have a problem with practicality and criminal law because whether or not the leak harm, if you did something to sell the post the iraq war mike and we started the debate there would be a lot of people that would conclude you did more good than harm although obviously if you lose that the date, you have committed a crime. and whether or not even though it did harm you didn't intend for it to harm. should that be a defense? the fact you rejected some of it but not all of it, should that

help you or not? and part of this i don't know from practicality point of view, you are up there and have been arrested for publishing the material and do you get an opportunity to debate the iraq war met before a jury if you in the the date your not guilty and if you lose the the date your guilty? if you are lucky enough to be in one jurisdiction where they hate the iraqi war might your in good shape for to the material you get stuck in another jurisdiction you're in deep trouble, crime, different jurisdictions. from just a practicality point of view, can you talk about some of these conditions and just yield the panel the balance of my time. ..

>> the problem is the flow. press people incur rich, flatter, talk to people in government all the time. they are actively engaged to try to find out that which the government does not want to disclose. they are involved. they are not paying for the information. we think that is a clear line. under the first amendment, i am not sure it is. where do you draw the line when a death list is doing his or her job well and is figuring out ways to control someone to say that which they do not want to. the issue of whether the media or the protected entity knows

something is classified -- the president -- the present law does not make the disclosure of classified information a crime. it makes disclosure of information related to national defense a cry. we are seeing that the fact that it is classified may get a presumption that there is a potential danger. it is the beginning of the conversation. i do not think that is going to be a meaningful distinction today. when you redraw this loss sunday, there may be one. someone may ask how can you prevent the classification? knowledge that is classified is not really going to be the positive. the intent is different. it is not what the outcome is that which you intended. in retrospect, it was better to

do or not do. it has to be the front end. it has to be intense. that is the same in every criminal case, trying to divine a criminal's -- a defendant's intent. that is going to be the challenge in a classification kind of case. someone say to the government, what should i read that? somebody who does things -- redact? someone who is dealing in job boxes in the middle of the park. finally, you raised an excellent last point. they are all excellent, but this one -- when you are dividing somebody's intent and you felt like you need to expose the fact that there were no weapons of mass destruction, that plays differently in a jury

room in alexandria, virginia that it would in washington, d.c. prosecutors might believe they have a more sympathetic jury. >> if i could just that briefly congressman you also raced, putting the jury in the decision of deciding whether something is rightly classified or not and it is important to keep in mind that if congress were to add an improper classification defense into any revision of the law, you are still putting in an incredibly high burden on the few of the defendants are but taken quite a substantial risks if you really think at the end of the day, his freedom whether he is going to go to jail for 25, 30 years depends on his ability to commence the jury that something was wrong to classify. i think that is not a legal argument but that puts a pretty heavy some on the scale of why that would not open the door to massive leaks and individuals who thought things were wrongly classified. those are pretty severe

consequences to take such a long shot on. >> mr. chairman, mr. congressman i was just add to what my colleagues have said, but a number of them have suggested we should alter the law to have an intent to injure and this is one of your points. i think there is reason to believe that which dad and -- would open the floodgates for leakers. there are many saudi terry reasons for leaking, but there could be considerable disagreement about what actually is salutary. the current law, which has reason to believe could injure the united states seems to capture behavior that they would really like to keep from occurring, keep genuine secrets secret. >> what burden of proof would you have that somebody also believe that this was good for the country although some juries will conclude it is bad for the country and others -- i mean you have to prove, does the prosecution have to prove beyond a reasonable doubt that he did not believe that what he was

doing was the right thing? >> i am not sure of the answer to that. i think it is important here again to distinguish --. >> are we talking about a good faith exception leaking? >> i think it is important to say between the leaker and the publisher. the leaker can be regulated. much more aggressively and there i think it is sufficient to say that knowing disclosure of classified information is properly classified. >> congressman one more thing on your last point. you know the present statute gleaned by the courts to the attentional requirements to show mr. schoenfeld's pointed out that you had a belief that it could injure, whether that is good enough. let me tell you why it is not good enough. what is could injure mean? what if you believed it was a 1% chance that it could injure and that 99% chance that it wouldn't? wherein that slope to the somebody become a felon subject

to 20 years in jail and that is difficult, especially difficult in a first amendment context. >> congressman i think the short answer is you don't write one statute, you write three and that you have one statute that is focused at espionage. you have one statute that is focused on leaking as mike call it professor points out. you can impose higher burdens -- make you can hold government placed a higher standard and you have a third statute that deals with private citizens with no intent to harm the national security of the united states. that is the incredibly tricky one to write, but no matter how it is written, i think having those categories separated out what have a substantial improvement in recognizing the burden should be different in those three cases. to be such a positive development compared to the

status quo that really almost anything would be beneficial. >> there is great benefit in having a very rigorous and narrow statute on publication of information. that puts pressure on the government to keep the secret in the first place. so they can't punish wikileaks because they don't have direct intent. they know that and they are serious about their secrecy. they will then take what is necessary to keep the information secret. if they can do that they will get lazy and sloppy on the results. >> thank you very much, bobby scott, for that interesting exchange. i turn now to the distinguished gentleman from iowa, steve king. >> thank you pitcher chairman. i did think witnesses. an outstanding lineup of

witnesses here and i would turn my first question to mr. lowell. it caught my attention in speaking about intent, and in this discussion we have had in this dialogue about intent i would be curious as to if you had separate intent, and they be three almost simultaneous identical acts by different entities with different intent, are they still guilty of the same crime? speak to put pressure on the bone congressman king, in my brief introductory remarks today i said the statute, i was speaking about section 793 specifically, could apply again first to the government employee who has the confidentiality agreement and then said something or did something that he or she should not offend any of the person who he is doing it to. could be a foreign-policy want. to be somebody else and then you can have the reporter who sa said overheard the published article in there all responsible

for releasing the exact same information and they may be releasing it in different ways. ironically the last here is going to expose its the most amount of people. the first person in the confidentiality agreement is disclosing it to the least number of people and yet it is easier to prosecute the first as professor stone and others said they should be, then the last. so let's take that intent against the last three. as to the government employee, he or she knows that based on the confidentiality agreement whatever he or she does that it is not supposed to occur in there are very few excuses to go outside of channels to do it. if you protect whistleblowers and putting that aside the intent requirement is easier to prove. to the person is not in the confidentiality agreement and is actively engaged in the exchange as were the defendants in the so-called aipac case, that was very problematic because on monday white house officials are state department officials brought the men did discuss foreign-policy that they wanted

them to no end in three days later somebody had a different level called upon the phone and talk about the same policy that was the subject of their indictment. their intent there for credit been proved by showing what was legal on monday should not be illegal on wednesday and then finally when you get to the point of the media, that is for all the comments of the intent requirement depending on their complicity in the original leaks will make a big difference. so you can take the fay can have three different standards of intent and still survive i think under constitutional scheme. >> mr. wainstein, your comments on that. >> congressman king i actually agree with the idea of having a tripartite approach. steve vladeck described i think narrowing the provision for each of these different categories is going to make a more targeted legislation. >> then let me take this to, the injury to the united states. what does that mean and how can

that be proven? >> that is also another sticking point in the whole wikileaks situation. i think you heard a little bit of that today. the question okay how damaging was that? may be back in the first charge that came out about dod, the dod documents about afghanistan, there were troop movements and alike. a lot of that stuff ended up getting taken out later on. is obviously sliding scale and when you are dealing with the first amendment 1 of the justifications especially if you are looking to prosecute a news organization, and organizations sort of in the shoes of a news outlet, you have to look at whether you are justifying the prosecution and the encouragement on their press activities in order to address arms of the nation. that is one of the big issues that the partners looking at right now going throughout the things that have been released to these wikileaks disclosures and seeing what the identifiable pieces of damaging information are in there.

>> i turned to mr. schoenfeld and you believe the espionage act should apply to a foreign defendant that is operating outside of the united united st? >> i think it could and should be applied and i think that what he has done with wikileaks has done is to certainly endanger, as a number of ranking members that member sets that come endanger our forces and the danger allied forces and civilians in afghanistan and iraq. the idea that the united states has no recourse in the face of this is unacceptable, and i think looking at the law, whoever discloses. >> while you have the microphone and for the record again, and appreciate if you could just summarize those five points that you made in the closing part of your opening statement. >> if i might take the liberty of looking at them. more attention to declassification.

attention to giving legitimate whistleblowers viable avenues other than the media to which they can turn. reestablishing deterrence of leakers and the government so that those who leak have reason to fear they will be prosecuted. bringing down the weight of public opinion and canst leakers certainly and against those who publish vital secrets, not just ordinary kinds of secrets or the daily affairs of american journalism. and some extraordinary cases, prosecution of media outlets that publish secrets which endanger the public. i would say in a classic case as we mentioned here is the "chicago tribune" case. but there are other cases that are approach that line in more recent years. the pentagon papers case, the documents that daniels burt turned over to "the new york times" where historical in nature. there was not a single but in that collection that was less than three years old. some of the material that was published by the "new york

times" in the last years and fined 11 is an operational ongoing intelligence program like a monitoring program. i read the new york city subway and so do millions of others and there are people out there determined to bomb those. this is a program designed to stop those people that we compromise. the seriousness of that and the responsibility of journalism in some cases as been extraordinary in this period, much much different than the kinds of things the times published in 1971. >> kenya says -- speculate on the motive for releasing information that is classified? >> there were two substantial leaks and that period. the first was the nsa wireless warned program and at the time they had an argument that this was a violation of the fisa act and there is legitimate debate about that. they believed that i think they performed a public service. we come to this swift program. they been warned by ranking officials, democrats,

republicans and lee hamilton one of the cochairman of the 9/11 commission not to publish this material and they would have. i don't think they have offered a very convincing justification for doing so. one of the reporters, eric lichtblau said the story was above all else and this is a quote an interesting yarn, but follows. for such a person with such gravity i think one can't imagine any more trivial rationale. >> the that answers is selling newspapers. my clock ran out a while back but i appreciate your testimony and i yield back. >> i am pleased to recognize the distinguished gentlelady from houston, texas, a very active member of the committee, sheila jackson-lee. >> mr. chairman let me thank you very much and i don't want to be prisms as to suggest that this may be the last hearing of the subject, but because i know that this committee works very long

hours into the night going to the session but let me thank you very much. for your astuteness in recognizing the importance of this hearing. for those of us who are in a quandary if you will. i will. i sit on the homeland security committee and spending many hours and classified meetings, in the cryptic if you will, listening to the array of threats against this country and frankly around the world. but i may also, or it comes to mind that if you become too restrictive and you have a law that is an ineffective in the espionage law, you also impact what can be the modern day, if you will, whistleblower. and another has been a distinction made with the

pentagon papers, sort of an after-the-fact report as opposed to these documents that are current and in place. so, i would like you gentlemen to help me with a quandary that i am and to limit information, limit the potential effectiveness of government. but on the other hand, i don't know whether or not we had a hearing mr. chairman and i am sure we did. my memory fails me but i remember distinctly as sitting vice president, blowing the cover of an active-duty cia agent and it was interesting to hear the response in that instance of this person whose cover was blown and as sitting vice president who thought he was completely right for either didn't minute or had someone else unfortunately be the fall guy for it. but i think in the g. shared committee is important to really

understand the law. there is some dispute. the wikileaks owner, leader, in the case that they did right the london ambassador and sought to have certain information redacted and no one responded but there is a november 27 letter from the state department saying don't release anything. abbe it is good to see you again. help me with that, because there was an effort made. i understand that the difficulty of the espionage law is knowing that you are disclosing classified information. doesn't have any provision for someone who tried to work with the appropriate person, because i guess i see a difference of opinion. i try to work with you. you did not want to work with me. what is the culpability? i'm going to yield to you first

and i just want to talk about the law and how does that relate to that specific action? >> great to see you congresswoman again. let's distinguish where the law isn't how it applies versus what people say it can be approved -- i can prove. the elements you are addressing goes to the following issues. when somebody is accused of violating 793 or 798 under the present espionage act if they are government employee, we have discussed the fact that they don't have the same back-and-forth ability to show that they did not have a reason to believe that their conduct would injure the united states or benefit an adversary or a foreign country. so in the context that you are asking into one the committees addressing which for example might be the wikileaks case. >> outside of that sphere. >> the then the question is, the

back-and-forth between julian assange to date and the other newspapers and government officials, here is what i have, what would harm, what would you like redacted, goes to something. where it goes to is when the government prosecute somebody in that position, that person, the government has to prove beyond reasonable doubt a certain intent. the defendant in that situation will be able to raise that kind of conduct to show that the intent was not want that had the mind to reason to believe to injure but was quite the opposite, that he was doing his best, recognizing that he and others would say was with his first amendment duties to do what was right and also showing his intent was a good one. the problem is that this is subject to a prosecutor deciding, i'm still going to charge him and let a jury decide whether the intent was okay. and is one of the other member said the difference between trying a case in jurisdiction

one versus jurisdiction to want something that is just called in tandem i hope that is responsive. >> notice and then i would like professor stone to take a stab at that and mr. lowell -- abbe and i worked together in the past and mention the first amendment rights. d. want to give me some sense of where that plays a role? >> sure. again, i think the government's ability to regulate the activities of its own employees who have signed secrecy agreements is considerable and that is where the focus should be, on keeping that information secret if it really needs to be kept secret. once we move into the realm of public discourse, then we should be extremely careful and the first amendment demands that we be extremely careful. schoenfeld, the incident from world war ii was public information that revealed the fact that we were aware of a

japanese secret code and we have been using that that is the way of advancing our own war. had that information been made available to the japanese, sick could have been given the fact that it was published, that would have been in fact a situation where there was a clear and imminent danger as opposed to grave harm to the united states so we would have lost a pivotal benefit in fighting world war ii. and that seems to me the paradigm case where a situation, where knowing the disclosure of that sort of information can be subject to criminal prosecution. the key to that example is that it happens centric. nothing in the wikileaks comes close to that. is important to say that is a situation where you can go after published to our disseminators of information who are not such a relationship of government. when it does happen it merits -- but beyond that we should be focusing our attention on the situation of keeping information

secret in the first place announcing government where secrecy is backed -- escap or crispy mr. schoenfeld you have a different perspective but i think both of us i think have the same goal. i'm a member of the homeland security commitment i don't fool around with potential terrorist threats and/or the new climate we live in but my quandary is, if we freeze down on the wikileaks, we freeze down even on information that may help us in the war against terror, they think the professor makes a very definitive.. i am embarrassed that the materials are accessible. how do you respond to the idea? >> i agree with professor stone that they "chicago tribune" case is really of a different order of problem that they are there would have been the kind of immediate and irreparable harm and really does not flow from

anything that appears in the wikileaks documents. but that is not to say that there is not significant harm from that release. i agree with you, we are all better informed now than we were two weeks ago, before those documents appeared about what our government does. there is no question there's a public in a fit that flows from that kind of leak. but there is the damage done from particular documents themselves which we have only really began to understand. there are so many different kinds of ramifications from these documents but what also has happened is a single to the ability of the u.s. government to conduct its diplomacy in secret, which is a critical task for keeping the beast. if our foreign diplomats can't speak candidly to american government officials we are not going to be well-informed about what is going on abroad. >> well, my message then is first of all i wondered

diplomats to speak candidly and i want their government to come into the world with 21st century technology so technology so that a young ella terry personnel, 23 years old, doesn't have the ability to hack into it. they will handle his case now don't think we are discussing that right now but we do have the burden and responsibility you are absolutely right. the candidness is appropriate. i understand the pundits have indicated that we look good but we don't know what else is coming. we looks good because we were consistent in our cable to our basic policy. that puts a smile on my face but the point is that if lives are put in jeopardy and again i go back to the vice president that blew the cover of a cia agent, to me that is a direct threat on some individuals life. if liza been put in jeopardy we have a different, if if you will, framework to operate under but your message to me is that we now have to get more sophisticated in how we do. i see my team -- i -- time.

can i just get the last two or three witnesses to comment? if you adjust quickly -- the dilemma, there was in korea and i think mr. lowell made it clear that someone's intent is in play here. mr. vladeck? >> congressman the only thing i would and if you mentioned at the beginning of your questioning his people are going to focus on the person who is doing the leaking and focusing on the government employee. the other piece of this is the whistleblowing and whether the whistleblowing laws are adequate to provide opportunities to government employees who have come across wrongdoing to have remedies other than going to their local newspaper and with that in mind they think is worth noting that i believe last friday. >> the new appointed person. >> i do think that recognizing that is part of the conversation

and that strengthening the federal whistleblower laws especially as they apply to the intelligence community could actually legally banned this conversation as well by reducing the number of occasions where governor employees will feel the need or the lack of other remedies when they come across information. >> if you would. >> congresswoman i think that is very important caveat to what professor stone was saying that the government has a lot more power to regulate the employee benefits to regulate the media and i would add overclassification as gabriel stone -- schoenfeld said. decanted with the overclassification we can't really protect serious whistleblowing that i think the government is not on such solid ground on coming down hard on its own employees and regulating them and that more severe way that professor stone says is constitutional. >> mr. stone, thank you for your service to this nation.

>> i think the point you earlier make that the disclosures by wikileaks can actually enhance our national security, the disclosures do damage. they do damage to government violations, to war crimes, to torture, to the kind of policies that inflame and expand the opposition to us by people who never had any entity to us and we can all cite peter goss and gerald casey and others who basically pointed that out, that our presence in these countries if we are not careful provides fertile ground for more opposition and more risk to our national security. so in that sense, these leaks build up public opinion and congressional engagement to hold the government's feet to the fire as the government under the rule of law and under constitutional standards in its foreign and military policies.

>> chairman, if you could just finish and that i will finish. >> thank you very much congresswoman. providing protections for people who see something wrong with american season want to disclose it and not only do we need to make sure we have sufficient laws to protect whistleblowers and prevent retaliation but also procedures, user-friendly procedures in agencies so if i'm an agency and i do something corrupt a run and i want to raise it it up it is easy for me to do so. i don't have to worry about retaliation. that is important because obviously the laws and procedures are in place to make it easy and seamless to do that and there was no reason that person is to go to the press so in addition to looking at the loss in the over said the looks of the agencies especially the intelligence committee to ensure that a d.c. to the whistle without fear would be useful. >> thank you mr. chairman. this is to you mr. chairman. this is a bipartisan hearing about simply want to see maybe

if we go to the next session in a bipartisan way we can look at whistleblower or as you well know that no fear act that needs to, that has to do with protecting government employees against whistleblower comments and i hope we will do that. thank you mr. chairman and i yield back. >> the chair recognizes the ranking member of the first subcommittee of this committee, the gentleman from north carolina, howard coble. >> mr. chairman i want to commend the panelists for their durability today. mr. wainstein you mentioned enacting a provision to prohibit the classified information by government employees regardless to national security. what are the pros and cons of cop -- such a statute and do we run the risk of igniting more classification than currently

exists in an effort to prevent dissemination of the unsavory but not necessarily damaging material? >> that is a very good questions around that actually harkens back to something that abbe lowell mentioned about how back in 2000 that statute was passed actually and then president clinton vetoed it in a statute basically said if you are a government employee and you signed this nondisclosure and andy disclose classified information, then you are guilty. the pro-is that is very clean. you don't have to show damage. you don't have to get into this back-and-forth of wedded this was damaging to disclose secrets about the iraq war are good because the iraq war need to be examined more closely. it is just clear. universe possibility as a government employee to protect classified information. you willingly and knowingly disclosed, you are guilty. the con side of course is that as you pointed out there is so much information that is

classified that it would be chilling to many government employees when they are going to talk to people that gee all it takes is one step over the line and i get into one iota of classification and i'm guilty. you know and if i intensely disclose that i can't talk about anything, so one of the cons is that it will end up, people will be scared to talk to the press and people will be scared to talk to congress because they are worried they will trip over classified information it might have people who will be prosecuted for information which though classified as you pointed out may not really be all that sensitive and might be either a matter of mistaken classification or something which is embarrassing but not really. >> thank you for that, sir. mr. schoenfeld is it your belief that the first amendment confers on journalists an absolute right to publish classified information or government secrets? >> no, it is not anything from

what i've heard on the panel there is some agreement with me that under some circumstances journals can be prosecuted under the espionage doctrine. into harken back to the "chicago tribune" case, we have a case where i think the espionage statutes would apply. the story came out that lost the lives of tens of thousands of u.s. servicemen and prolonged the war, so the supreme court of course in the pentagon papers case, five of the nine justices i noted earlier did suggest that the case came to them not as a priority case but after-the-fact is an espionage act for prosecution or section 798 prosecution they would strongly consider holding a convention of the material at issue was material that the congress had indeed prescribed under those statutes. >> i got you. thank you sir. professor stone we touched on

this but let me run it by you again. does wikileaks enjoy the same protections as traditional journalism organizations and in the internet age how do we distinguish between traditional media and the new media and does the law contemplates such distinction? >> i think realistically it is impossible to do that. the supreme court itself in the first amendment has arias refused to define who is aggressive and in any event the speech clause as as been noted is an independent protection so although that may be frustrating i think there is a practical reality there is no way to distinguish wikileaks from "the new york times" or from a blogger. they are all part of the freedom of speech and the first amendment protection. now that doesn't mean that the conduct may not be treated differently depending upon what they actually do but i think in terms of the nature of the institution or individuals, as a practical matter that is not

going to be a sustainable line of inquiry. >> thank you gentlemen for being with us today and i yield back mr. chairman. >> thank you mr. coble. i now turn to bill dave hunt, the distinguished gentleman from massachusetts. >> thank you mr. chairman and this has been a very informative discussion. we are talking about legislation and that problems of drafting appropriate language and the issues of intent etc.. but i still go back to what i said. until congress and particularly members of this committee addressed the issue of the classification processes, we are operating in the dark. we don't understand the classification process. i wonder if anyone on the panel

braley does in terms of the steps, who classifies? i have heard some of you use the term improper classification. who makes that decision? i have heard the term authorized leaks. what in the hell is an authorized leaks? is that a leak that you know, someone in the administration can do, but we can't? what struck me again when i chair the oversight committee on foreign affairs was we would get material that was rejected, page after page after page after page,. all you new or all you saw was the number. and that of course the next day you would read in the

newspapers, but i guess that was a good leak as opposed to a badly. so, i hope, and i would direct this to my colleague from iowa, i hope with the new congress that congress conducts a series of hearings where it demands an explanation of the process itself. are we going to rely on bureaucrats, you know, at a lower level, to to do good reduction? who does all this? help me with the ministry. can anyone here? may be icu abbe nodding your head. give it a shot. >> i can't answer that question in a blanket fashion across all agencies in all parts of the department of defense and all places in the world but i can answer it based on the materials

i have seen on the cases i have litigated and you are raising a point. so, in the aipac lobbyist case, by the time we were done and getting ready for trial there was no fewer then, i don't know, for 5000 pieces of paper that were in a classification mode at one level or another. as an executive order which has criteria for why something is classified, very specific categories of the potential harm that the release of that document or information could cause. like every other thing you have been talking about today those aren't microscopic definitions in a mathematical way. they are subjected to begin with. one for example talks about interference with the nation's foreign policy or foreign relations, relations with a foreign country. >> what does that mean? >> then, the second question is who gets to decide, you ask. >> that is the key. >> and many agencies what you'll

find it is not just the secretary or the deputy or the assistant secretary or its equivalent. is the lowest level of the person working on the subject subject everyday. >> that is my concern. that is my concern. i think that issue is the predicate for addressing the concerns that usa panel have address. you have got to begin their. we really have to do a thorough review because i would testify in the next congress that as chair of that committee, i saw material that was classified that was absurd that it was classified and was just building up a backlog of classified information that everyone in this room today would concur ought to be in the public domain the concern that i have is not so much about wikileaks but

about what we are not having access to any democracy. and again, i hope that in the future it is addressed, whether it is in this committee or any committee. may be a select committee is actually needed and people coming in who actually do the classification, not the secretary, not the head of the agency but to hear it. i had occasion working with congressman longer where we had concern about information that was being disseminated from the fbi. it was very revealing in terms of how it was done. and i'm not saying it was the classification was done in good faith. but it clearly did not come, in my judgment, meet any kind of standard in terms of classification. that has got to be reviews.

>> you have got a couple of great assets at your disposal for the next session. there is a terrific review board called the public -- headed by the head of the national office. howdy changed on the front and? every single classification decision that a bureaucrat makes generates extreme cost to the taxpayer that goes on indefinitely until somebody like me ask you that document to get release. that is a terrible way to do business. should be automatic after a certain sunset on everyone every one of the secrets. there is a wonderful little office called the information security oversight office that audits the secrecy system. they are smart. that of the office is the guy who coined the term wiki mania that i've been using in my statement. call us and give us more resources.

i think they have 29 people on this massive over classified security system and they need some help. they can guide you through how does the stamp get made. the last thing i would ask fisher chairman, we have done about four different postings that support the consensus on the committee of massive overclassification. congressman poe, and on it and agreed with congressman thale hunt. this is a piece of declassified process one week apart in the first time they cut out the middle, blacked it out in the second time they cut out the top in the bottom. the slide them together and you've got the whole thing. the punchline is that was the same senior reviewer. we have these graphic -- and i hope we do something about it.

>> who authorizes these by the way? >> there's that famous quote from james baker the former secretary of state under president george h. w. bush who said they'd ship of state is an unusual state. it is the only one that leaks from the top. and i think daniel schorr once, and with david gergen brought into the white house jim baker said leaking at the high level, they need somebody to leak at the mid-level. >> you know what i find ironic of course is the umbrage that some will take about some leaks but i guess it is not their leaks. they were good leaks and bad i guess is the bottom line. >> mr. nader? >> congressman, part of this goes back to the integrity of the civil servant and protecting it and leading civil servants and people who work in the armed forces and the executive branch take their conscience to work and if you look at the civil

service oath of office it is not to the cabinet secretary. is not to the president. it is to the highest moral standards. a lot of this idiocy and overclassification comes from the lack of internal self-confidence that they will have reasonable protection by civil servants who would say this is foolish to do this. i will give you one example. 40 years ago one agency of the government wanted to get the u.s. navy the amount of water pollution coming out of naval bases. the navy denied the then agency dealing with water pollution. they did night the disclosure of the volume of sewage going into the ocean on the grounds that the chinese and the soviets could use that information in order to determine how many sailors were on the base. that is a level of foolishness that could have been net in the

bud if we supported our civil servants and basically recognize that this is overall a struggle between individual conscience of people up against the organizational machine if we call bureaucracy. and we all we should bring back the civil service oath of office. very short, very compelling. they'll have to take it. we should protect them in a future that can be implemented in their daily work. >> thank you very much. your additional time was granted at the leaves of steve king of iowa. we now turn to the distinguished gentleman from arizona, trent franks. >> thank you mr. chairman. i appreciate it. i appreciate all of you folks being here, challenging the subject this morning. i think it is obvious to me and

perhaps to all of us that no human being regardless of their education or training is really confident to apply and are the full extent of the actual damage that a week like -- leak like wikileaks could cause. h. -- potential and determine damage and i think it would be completely hopeless endeavor so i i'm convinced obviously that julian assange cannot possibly be able to project what the potential damage of what he did is all about. that is a significant point but in light of that obvious truth, i'm wondering if it is time perhaps for us to rewrite our statues to establish some sort of lower burden for the prosecutor when it comes to proving the likelihood that a leak could cause actual damage and the necessary level of intent under the statute itself. mr. schoenfeld you mentioned in your testimony that the ill effects of information leaks can sometimes take years to manifest

and you mentioned pearl harbor in the book the american black chamber as an example which i think is a brilliant example, where the book disclosed certain things that perhaps could have prevented pearl harbor and i'm going to try to get you to expand on that a little bit, and you know our government i understand actually considered prosecuting the author of the book but still like the prosecution and the public nature of the mike in light in japan even more than what the book did. so i'm hoping that you can describe what my kids banned by the outside observer to be the unforeseen consequences of the leaks through the book and if hypothetically the author of the american black chamber were to be tried criminally for disclosing intelligence information today what level do you think a prosecutor would be able to show in this case?

i guess purposeful or malicious intent to aid in the bombing of pearl harbor would not be one of them. that would probably be a little too strong but what about perhaps a recklessness? i know it is difficult to show melissa's intent but yet the devastation it that was caused of pearl harbor and my last memory of the numbers in that war was 50 million dead was kind of the big deal, the whole war. and so in light of this do you think we should reconsider the elements of our espionage statutes? i have given you a complicated question there. tell us about lack chamber. tell us how it all fits and how you think you would approach that today. >> thank you very much. that is a very interesting question. he was probably america's leading cryptographer in the 1920s. he was put out of his job after secretary of state stimson said gentlemen don't -- fell on hard times in the depression and

wrote a book called the american black chamber, basically voted to make a pile of money. the full history of american code breaking efforts including our successes in the washington naval congress in 1921 where we broke the japanese diplomatic codes and we were able to have negotiations. in the book came out it was treated much like eric wicklow regarding his own story and at times, and ingesting and highly entertaining is what an american newspaper said about it but in japan accosts it costs an absolute fear about the laxity with which their own government had treated them. is that the japanese government over the course of the 1930s to invest heavily in additional code security and they developed a purple machine which was really an breakable. one of the consequences was that it delayed -- it slow down the pace with which our code breaking effort could read japanese cables and we were

somewhat behind when pearl harbor came along. we missed crucial signals that pearl harbor was the intended destination of the japanese attack. now, if you are if he were to be prosecuted today, it would he not a hard case because the intent provisions of protection 798 which govern communications intelligence are very clear. it is one of those unusual provisions of american law where the act itself is a crime. and so, there might be a constitutional challenge but the statute itself does not have a requirement. as for relaxing the espionage act, overall i am cautious about changing is that anyway. i think congress should move very slowly. white meat and it has real cost. tightening it has -- has other costs so i don't have an answer

but i think hearings like this with attorneys and i'm not an attorney who has worked closely with the act, are very much in order. >> thank you. mr. chairman chairman my time is up that i really wanted to know i appreciate the response that i hope that kind of puts things in perspective here. sometimes there is no way to possibly anticipate what certainly can cause in this case it really caused japan to rewrite and reassess their codes and potentially could have prevented pearl harbor. in the 911 world we live than it is a relevant consideration and i thank you is your chairman. >> thank you very much, but professor stone wanted to get one comment and about your question. >> thank you mr. chairman. i think it is very important not to get fixated on this question

that does the speech cause some harm. one of the things the supreme court pick it up pretty quickly is that almost all speech causes harm. is not harmless and so they made a terrible mistake during world war i which is they took the position because criticism of the war would undermine the morale of the american people it might lead people to refuse to accept induction into the military and that could be punished because it might have harm. what they figured out pretty quickly after that is that you can't prohibit speech that criticizes an ongoing war because it might have harm. speech does have harm and in the pentagon papers case although the court said there was not likely and grave harm, certainly we were revealing all sorts of confidential information about the past, with respect to our allies, that we made alliances that had been publicly disclosed

before, that made more difficult for us to negotiate in the future. if the standard focuses on harm to draw the u.s. given up. >> thank you very much and we thank trent franks for raising this line of discussion. i turn now to my good friend, the chairman of the courts subcommittee, hank johnson of georgia. >> thank you mr. chairman for holding this very important hearing. thank you panelist for burying through it. before i ask a few questions, i would like to respectfully remind my colleagues that the wikileaks organization and mr. gillian assange are publishers. now if they can be shown that they in some way aided and abetted in the perpetration or

commission of a crime or if they were parties to a crime, then they could be subject to prosecution. buds, the justice department has yet to come forward with an indictment and, until and unless an indictment is issued, and until there is a trial, or an indictment, then mr. assange is entitled to a presumption of innocence by law, and his guilt would have to be proved -- they would have to be proved beyond a reasonable doubt before that cloak of innocents, that

presumption of innocence could be removed from him. so, first i would like to just settle us down and let us look at the situation through that lens. we do have constitutional rightt to speak freely and a right to publish the first amendment. and i would also like to point out the fact that the all of the documents that were made available to wikileaks are not all classified. some are classified, but there have been -- there have been

indications from secretary robert gates that the releases thus far have not significantly harmed overall u.s. interest. and a quote from secretary gates, it's as follows. the fact is government with the united states because it is in their interests, not because they like us, not because they trust us and not because they think we they can keep secrets. and so while there is a public furor about the release of the documents and information contained therein, having been disclosed to the public, we must not get carried away in a fervor as to what has actually occurred. now, if these leaks, and i

assume that they do under blind national security, and the ability of american diplomats to do their jobs, and american personnel who actually engage in compromising this classified information, should be prosecuted. they should be prosecuted to the fullest extent of the law. but unless those criminal allegations are proven, let's be careful, and let's insist on that presumption of innocence. now, "the new york times" is also publishing this informatiot shutting down their web site or encouraging an international manhunt.

and we cannot allow whatever outrage that we may have, whether it nodded it be justified or not, to cloud our judgment about our fundamental 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.

and an alumnus has warned school officials that students interested in a diplomatic career should not access the documents, even from their home computers. if i may ask, what are your thoughts about this? and censorship-free internet access has been an issue for us with other countries, particularly china, and we encourage them to open up, to have free internet or freedom of internet access, in do you see where our current stance could

place us in an untenable position as far as assuming a moral high ground, for making those kinds of arguments to those around the world who do not enjoy the same freedom that we do? >> and it was said that if there was not a student that was not a wikileaks, that would be bad. this is foolish.

i'm sure it will end. it does not get us anywhere, and there is a larger question that you're going to, and i think this is where the slippery slope is that we were talking about. the action apply to foreigners. well, i have to say, on our website, the national security archive, we published the transcripts that are top secret in china. they get a right to prosecute me on that basis? i am sorry, i do not think so. i think we should try to move to a different kind of standard about what transparency we can bring about in governments worldwide. >> i think those recommendations were, first of all, futile. you cannot enforce them. chilling, in is not the best type of civil servants or foreign service officer that these students should aspire to.

we cannot let should the world in one direction and then engage in suppresses activity in our country. -- lecture the world. to explain not only what she perceives as the freedom of chinese hackers as compared to other hackers but also have she has in effect done what signature and gates has done,

which is downplay the importance in terms of risk about the release of the state department cables. the more set the gates and clinton downplayed this, it seems the strong predicate that julian assange has done. >> the unauthorized release of documents, of confidential documents, some of which are secret. >> i think, congressman, there are unquestionably benefits, but as the professor mentioned a few moments ago, there is also always hard. and we have talked about the harm. i does want to talk about the benefit. >> it is hard to dispute that having access, having public

access to information that was not in the public domain and should have been is always a positive thing, to use the old aphorism, "sunshine is the best disinfectant. i do not think there is a benefit. i think that is pretty clear -- i do not think it is about a benefit. that is clear. >> this is a clear benefit from these events, because it is allowing congress to sift through, again, and 100-year-old statute to make sure it is working the way that it should, so in that sense, that it sponsors this kind of public discourse, we are the better for it. >> well, we of some among us here in congress that feel that government is the problem, government is, as soon as it starts putting his hand in things, then everything goes

haywire, so i do not know how we resolve the basic conflict, although i guess those folks who would say that the government gets away are confining their objections to a commercial context and not to the security context, but it is still a roddick but barrett be those who would chip away and really hack away at our right to free speech and a free press was the same time wanting government to get out of the regulatory business with respect to commercial activities, so with that, i will yield back.

thank you, mr. chairman. >> you're welcome. >> and i will note that not many are rounded to listen to my comments. >> the chair now recognizes texas. >> i would want a yes or no.

we are providing approach boat information that has been provided to them. yes or no is the amazon cloud server. is it a recipient? is an internet service provider a recipient, yes or no. >> yes, but is unconstitutional. >> its is what? >> it is unconstitutional for purposes of criminal liability >> the medium is a recipient >> it would be moved to apply it that way >> yes, they are a recipient. the statue will apply once they disclose again. it is not a crime to recede. it is to transmit. like the professor, i think that application would be unconstitutional.

>> it would be a recipient, and i think it would fall within the statute, but i think you'd be very unlikely that anybody would like to prosecute it, and while there is a provision about not returning inflation to the government, there are certain circumstances where an entity can be prosecuted. it is very unlikely that this would be prosecuted even if it in turn distributed beyond the services. >> it is a recipient. i agree that is very unlikely that due process whenever tackle it because there are more blatant leaks that have not been prosecuted. that when things really a stretch. >> ok. >> yes, i would just echo that point. i think the key is the retention. i think the government would more quickly prosecute the

retention ban for publication, and i think that is where you'd see the constitutional problems that were alluded to. >> yes, but should never repress a kid. it just never. >> no, it is a contractor. >> a i am with you. it has huge implications. unbelievable implications, because that i really think you need to prosecute the person who provided it for the newspaper and the person that provided the paper to the newspaper. why are we not doing that? you are saying that it is unlikely, but crazy things happen. crazy things happen when people are scared, and there is you're out there, and this question will go to mr. rolling -- mr. lowell.

let's say we tighten up power because the by information, and we find this formula, and we have got the criteria. it is tightened down. it is legitimate and classified, and then somebody violates their oath -- that is easy. that person is good to be prosecuted and should be, and persecuted, likely, and that happens, but now we go to the person that receives the information, and i think you introduced a specific requirement to, espionage, the intent to injure the united states. how do you define specific intent? it cannot just be that it is known that it is injury is to

the united states, were you start giving something about a point in time that you should assume, a reasonable person should assume these things. i think you're on to something in that east of of to have the intent. when your whole defense is that they've never had that intent, so we end up back on the intent question. >> well, either congress will end up in the intent, or the courts will end up with the intent, and when both of them do, they will look to various things, which appointed out, what they do every criminal case. the context of the statements, the states in which the active, and if the government employees sees that their immediate boss is talking to the press about a topic, that person may have a good-faith belief that is ok to

talk about, even if it includes classified information. if a recipient is acting in the context of his or her job, and here's something and transmits it, because there's nothing that indicates it is of and to the damage, and it is part of the parsons job, it is intense. it is part of that person's job. there is evidence of intent. the issues of bad faith and good faith apply in almost every criminal prosecution in a white- collar context. this is no different. herridge is a unique. >> i do not have anything to add. if i think i would want to attack on it is if there be circumstances that we want to include for prosecution shortish

joins the intent that we insure that the defendant acted completely recklessly and without regard for any of the statutes we have built into the statute. >> mr. chairman, thank you. one last observation. when we all went to moscow, you remember times of what -- times of war, the law is silent. the problem with today is that wars are indefinite. wars are open-ended, or they're not even declared. that is what is really probably one of the greatest problems for us is what is, i guess, the normal of here. in thinking very much, and i yield back. -- thank you very much.

this may be our final hearing, but we could be back what -- next week, so i cannot be conclusive that this is my last hearing as chair. >> mr. chairman, if you come back, i will come back, too, and if you will yield, while it is in decadent, how much longer we will be able to call me mr. chairman in the official capacity, you will always be chairman to us. before to reciprocate in next year. >> thank you so much, and i want to say to these seven gentlemen who have been with us since early this morning, this may be,

in fact, for me personally, one of the most important hearings that the committee has undertaken, and i'm already talking with one person about the possibility of subsequent hearings on this same subject in the 112 congress, so we think you as sincerely as of a skin and to clear these hearings adjourned. >> thank you, mr. chairman. >> big you all. -- thank you all. [captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute]

>> tonight at 6:30, 9:30, and 12:30, supreme court justice elena kagan. she talks about why she wanted to become an attorney. the interview took place at her temporary quarters in the supreme court. >> i think i became a lawyer for all of the wrong reasons, you know? i was and law school dean, and when i was a law school dean, i told people, and they do not go to moscow is eager to do not

know what to do," but that is why i went to law school. i did not know what to do, and i it believes in keeping your options open and having a degree that you could use for anything, and i was not are sure to practice law when i start of law school, but i thought, what would be wrong with having a law degree?" and when i got to law school, what i was amazed to find was that absolutely love law school and studying law, in a way that i do not think i have loved any other part of my academic experience. i've always been a good student, but i had never felt that kind of just passion for a subject that i had, and i like thinking about law. unlike that law was something that was both an intellectual challenge and puzzle but also had very real-world consequences so that you could really think about using what you're learning in order to make the world a better place, in order to make people's lives

better, so i found it endlessly interesting and challenging, and in the ins, i think i went to law school for the wrong reasons, but i was very glad i got there. >> the full interview with supreme court justice elena kagan is tonight at 6:30, 9:30, and 12:30 eastern on c-span. >> from this morning's washington journal, a discussion about an investigation. this is about 45 minutes. "washington journal" continues. host: a veteran of washington, d.c. politics. this report has been delayed, why? guest: the whole process has been mismanaged. we had many months to do this

report. we were supposed to get a draft of the report in april. we did not get in the draft until late november. the piece is about 450 printed pages. it is complex stuff. we, the republicans, have not to an opportunity with review its -- an opportunity to review it. we have not seen the whole report except in the last few days. it makes it almost impossible for us to have a reply to the position that the majority is taking here. host: one of the many stories of what happened is that the competing narrative of the republicans and the democrats made it difficult to have

bipartisanship on this. can there be bipartisanship on what happened on wall street or are there competing narrative? guest: there are competing narratives. these are important questions because they determine how the government will react to things in the future or whether there will be another financial crisis in edt. this is not the sort of thing you can easily proposed. we have not had the opportunity to come together on an agreement. we did not actually discuss what worthy causes of the financial statement until things are right this year. we did not start of the commission's activity this year. it has been a difficult process for the republicans because we have not had an opportunity to have the kind of input one would have expected we would have as members of this commission.

host: why was the commission set up and beat republican members of the commission? guest: the the former chair of the house ways and means commission, a white house official who was the head of the present's national economic council -- of the president's national economic council and the former head of the congressional budget office. the republicans are well skilled in the washington event. they understand economics and they could have been major participants in the preparation of this report. unfortunately, i do not think we had the opportunity to do that. when it came time in late november for us to hear about when we were going to start seeing this report, we would

told -- we were told it would not be ready in time for the deadline, which was december 13. that was the statutory deadline. the commission was supposed to be finished by then. we worked to that deadline. then we were told it would not be ready at that point. we were inclined to vote against it and to oppose the closing down -- to oppose continuing the investigation. we wanted to close it down and get the report out. that is one of the reasons why we developed this statement that we put out. we put it out on december 15. that is recognizing the date that the commission was supposed to report under the statute. this has provoked a lot of controversy.

there is going to be a lot of controversy about what happened in the financial crisis and why it happened. unfortunately, there is a tremendous amount of commentary coming out of the internet and being "the new york times" that is beginning to show the depth of the feelings on both sides. that is unfortunate. what we need in this country is a serious discussion of why this financial crisis occurred so that we can assure ourselves that it will not happen again. host: one at the map of what happened was the passage of the dodd-frank bill -- what aftermath -- one aftermath of what happened was the passage of the dodd-frank bill. guest: i think of the dodd-frank bill as obamacare for the financial industry. it does about the same thing as

obamacare did for the health- insurance industry. it takes control of the industry entirely. this is a massive piece of legislation that takes full control of the major financial institutions. these are not just banks we are talking about. we are talking about investment firms, securities firms, holding companies of all kinds. they are all subject to full regulation under this bill by the federal reserve. in other words, all of the effect of regulation, which tend to be negative, they raise costs, they tend to suppress an ovation. all of those effects will occur with this regulatory structure that has been placed over the entire financial industry. that is why this issue of what caused the financial crisis is so important.

this bill was presented as a way of preventing the next financial crisis. it is based on an analysis of what caused the financial crisis. that analysis has not yet been done by the financial crisis inquiry commission. we have not reported yet. congress passed the bill that purported to respond to the causes of the financial crisis. the republicans did not think -- i am sure democrats on the commission thought and will present information that they will say we will get to your phone calls in a moment. we talked about this issue.

our guest said it was the banks rather than fannie mae and freddie mac that were partly responsible for the financial crisis. here is your comments. most >> of the bad loans were originated as a result of what we call private label securitization which originally had nothing to do with fannie mae and freddie mac. these were securities that banks and investment banks were issuing and they had close relationships with predatory lenders and lenders who were engaged in fraudulent activities in putting out laws. those are the worst of the laws. fannie mae and freddie mac have been unfairly labeled as a cause of this problem. host: your reaction to her comments? guest: is one of the things that the commission could have cleared up. she does not have the facts. no one really had the facts. when our report comes out, there will be enlightenment about this. there has been a lot of talk

about fannie mae and freddie mac. the situation as i see it is that there was before the financial crisis began, 27 million subprime and other high- risk loans and assistance. of that number, 19 million were either the responsibility of fannie mae and freddie mac or fha and other government agencies or banks that made many of these loans under the community reinvestment act. 19 million which is about 2/3 of the total bad loans in the financial system where the responsibility of the government. fannie mae is not the only responsible party. it is actually part of a government housing policy to increase home ownership which is a perfectly good idea. the trouble is, they did it by

forcing private entities and fannie mae and freddie mac or private entities though they were backed by the government and banks under this community reinvestment act, to make laws that would -- that they would not have otherwise made. that is really the underlying cause of why we had a financial crisis. when the facts come out, many people may not change their minds because of politics and partisanship but many people will find they have to explain why it was that the government created a system in which we had so many bad loans in our economy. when those loans defaulted, they caused banks and others, not only the united states but around the world, the were holding these mortgages or the securities based on these mortgages. host: there are 10 members of

the financial crisis in korea. our guest is one of four republican members. he is a veteran washington, d.c. and works for the former governor and vice president nelson rockefeller. he was the chief counsel in the ronald reagan white house and was in the treasury department in the first four years of the ronald reagan administration. he is the author of four books. our first call is from middletown, new york, good morning. caller: i will hang on if you allow me to respond to his response. the underlying cause, i just heard mentioned. if you are going to do your job well, you will have to deal with and expose the lobbyists that are behind the big banks, the medium-sized banks and the way they persuade and sway our politicians to do what they want

to do to get legislation the way they want it, to make themselves more profitable and make themselves very risky institutions. if you are going to do your job, you have to deal with expos and the lobbyists, naming names -- exposing the lobbyists, naming names, campaign contributions, to accept those contributions, both parties. you have your job with liquidity and derivatives and credit defaults swaps. some of the experts don't understand these. i am a saber. i have my money in cd's i have saved a lot of money in my day. i had a bank that went belly up and the s -- fdic was there. there was no reason for me to have to go through the steps of

experiencing a bank to go that way. i will wait for your response and allow me to respond. guest: first of all, let me respond to the question about the lobbyists. they take tremendous hits. i may have been in washington too long, but there is a real function for people who lobby congress. what congress is dealing with is exceedingly complicated. we want to be as sure as we can that when decisions are made and laws are passed, at least all of the organizations, people who will be affected adversely by those laws have had their views fully understood by the congress people, the house members and senators, who are voting. i hear a lot about lobbyists being troubling and there are many lobbyists who have caused a

lot of controversy because of what they did and some of it was not entirely honest. there is real value in having people who are representing others and telling congress how things would actually work. as to the question of whether the lobbyists are excessively influencing the people in congress, senators and congressman, i think we have pressures on all sides coming in. there is no indication that i have that the banking industry or the financial industry is any more influential than any other industry. in fact, if you look at the dodd-frank act, you can see that the banking industry lost huge amounts of business and profits because of what the dodd-frank act did. we can talk later perhaps.

i hope will have the opportunity to say how it affected the banking industry but if you think the banking industry was influential, you can't explain the dodd-frank act. host: do you have a quick comment? caller: that was a very general response about the nature of lobbying. phil gramm with his shenanigans during the clinton administration, he's not in the legislation at the end of the clinton administration which he was unable to for the months and years prior that enabled the banks, the legislation that enabled the banks to deregulate. with a man like you at the helm, we are in a lot of trouble. host: a quick comment? guest: i think he is talking about the pact signed by

president clinton and endorsed by president kate -- clinton, endorsed by the secretary of the treasury, robert rubin. i think there is a lot of misinformation there. there is information about this that everyone should read host: this question came from twitter. can you ask why goldman sachs is still open and no banker is in prison? guest: i can't explain that except that goldman sachs has been investigated by the sec and they are currently probably being investigated by the justice department. it has never been determined that they did anything that was of a criminal nature. that is also true, it seems to me, of the bankers. i know many people are angry about what happened but that does not mean that there was a

crime here. we should not be talking in those terms, either. we are talking about people who were doing what they thought was going to be good for their firms and their shareholders. at the shareholders it may have turned out not to be so. that is because many of the experts in the field did not really understand the kind of things that were happening in the mortgage market. that, i hope, will become clearer when the report of the financial crisis inquiry commission comes out and there is associated data that i hope i will be supplying which will show the complexity of this issue. host: our guest is a member of that commission. republican line from detroit, good morning. caller: thank you for taking questions. i find it a little odd when i call that i presume to have

close to the knowledge to form a question regarding such matters. i wanted to ask and attach myself to the last three callers. robert rubin back in 1990 s sought a wfgbh -- i saw a wgbh documentary where he underestimated the capacity of banks, the weakness of the financial system. it ended up in a disaster. it was wonderful to hear somebody apologize and admit an error. i want to say that the country has lost sight of the red flag across the board. in all sorts of matters. why is it that fannie mae and freddie mac, i believe chris cox

was the chairman and had to report periodically before the congress under oath, i believe -- clearly, they did not tell the truth on numerous occasions. guest: i can't say that i know any specific case in which fannie mae and freddie mac did not tell the truth under oath. there are instances which i think will be exposed in the report of the financial crisis inquiry commission where they did not fully describe the risks of that they were taking when they filed with the securities and exchange commission. chris cox was chair of the securities and exchange commission. when they filed, they did not fully disclose the risks they were taking. that was one of the reasons why we had this financial crisis, in my view. many experts in the field looking at the disclosures that were being made by fannie mae and freddie mac did not realize that they were taking risks on subprime loans to the degree they did.

they ended up holding a huge number of these subprime loans. when the great housing bauble that we had began to deflate in 2007, those loans began to fail in unprecedented numbers. it was the failure of those loans that brought down all of these financial companies which is what we think of as the great financial crisis of 2008. host: is their failure in the oversight by the bush administration to make sure these faulty loans did not go through? guest: absolutely, all of the issues with fannie mae and freddie mac requiring them to acquire these affordable housing loans which were in fact subprime and other high-risk loans began in the clinton administration, was pressed by hud through the clinton

administration and writer the bush administration right through to the end. both these administrations were responsible for doing this. i hope we can get away from the partisanship associated with this. we should be talking about what is the appropriate government policy here and whether the government was too much involved in trying to direct funds into mortgages and housing under a social policy rather than an economic policy. host: who chairs the committee -- commission? guest: philip antilles. gelides. he was in the commercial land development business and then he ran for governor against governor schwarzenegger in california but was defeated in the last election host: lafayette, indiana, good morning. caller: it is my understanding

that social security will pay 2% less which will generate a lot of consumer spending. my question is, they did away with civil service in 1983 which is due to end in 2013. there are still many people working under civil service. instead of paying 7% into that fund, will they be allowed to pay 5% so they will have some consumer spending money? guest: this is not an area that i studied it particularly. i think you were referring to the amount being paid into social security is in the recent tax bill were one of the stimulus to the features is that there is a reduction in the tax that is paid by employees into the social security fund.

actually, i thought it would have been a bit -- would have been better to reduce the number that was paid by employers as well as employees because that employers would be more inclined to hire people. there is a huge wedge. there is the cost of hiring someone. if we can make that wedge, that caused lower, it is more likely someone will employ a person. that is really what we want. we will -- we need much more employment in this country. host: car run a, calif., democrats line, good morning. caller: merry christmas. when the social security was established, it it was not an entitlement. it is money that people pay into it. i realize it has $2 trillion and they would like to get into their coffers. the american people have a trust fund.

that should be the question. how can americans and expect anything to change when somebody warned about the system collapse repeatedly and was blackballed? thank you and god bless america. host: let me ask you something more specific. you and others keep writing about systemic risk. what is that and how did that lead to the problems we faced in 2008? it guest: in general, it is the idea that the failure of one institution could spread to other institutions. if a bank fails, the money that it owes to other banks and other institutions would not be available. that would cause those institutions to fail and that would create a kind of contagion

throughout the economy. that is the classic definition of systemic risk. in my view, that is not what happened in the financial crisis at all. what we had was something closer to what you would call a common schock. that as many of the institutions were holding the same assets and when that asset class failed and we are talking about mortgages, when those mortgages failed, many of them work week and poor quality mortgages. when they failed, that caused all financial institutions at the same time to look very weak and be in danger of failing. it was the danger of failing that caused a huge panic among investors, counterparties, lenders, and others and people stopped lending to one another because they were not sure which of these institutions was safe and which was not. host: home prices are either

stable, low or depressed. interest rates are still at or below 5%. how long will this last? what will move us out of this finance -- housing crisis? guest: it is difficult to tell. housing prices are continuing to decline. many economists believe we have not seen the bottom in housing yet. the government has prevented us from reaching the bottom. we will reach the bottom when houses -- housing prices stop biting and many other people come in and start buying. they know they can get a good buy on a house. if they think housing prices will continue to fall, they will not go -- a woman by for the feeling that they will lose money on the purchase that will make. the best answer is to allow the market to clear by allowing prices to fall to the bottom, then people will come in as

buyers because there are plenty of people who want to be buyers, and we will start to see a recovery. host: among your books is a book about ronald reagan. your also the co-author of nationalizing mortgage risk. tennessee, good morning. caller: i disagree with you about goldman sachs. i understand they created the mortgage swaps and they bet against them failing and that is how they would make money. i blame the hedge funds and wall street for this crisis. to much speculation going on and the banks tried their best to do some things. i heard that 59 bankers were indicted. i don't know if that is true or not. what do you think? guest: i have not heard that number. i am not sure i have heard of any indictments of bank, per se.

there was a major civil suit brought by the securities and exchange commission against goldman sachs that was openly settled without goldman sachs admitting or denying any responsibility. what happened there is exceedingly complicated. goldman sachs in that particular case took the position opposite of the one i think you were suggesting. they were saying that these would be good mortgages. they were not betting against the mortgages. however, the party of the other side did by credit defaults what that enable them to bet against the mortgages. that turned out to be not a good deal host: one of our viewers asks how we can click bubble when the fed is still printing money and keeping interest rates low? >

guest: this will be difficult. the fed is trying to help the economy recover and there are a number of major problems here. one of them that is getting increasing attention in washington is whether the fed has a conflict of interest here. they have been given two responsibilities. one is to create and maintain a stable currency and the other is to assure employment. and reduction in unemployment. though past two different roles are in conflict in a way because in order to improve the employment situation, they have to create, in effect, more money or keep money less tight so there is more spending, more opportunity for businesses to have credit. the danger of that is that in the future that can cause inflation which is opposite of a

stable money supply. in this new congress, this new republican congress, there will be new attention paid to that issue. the other question you raise is whether what the fed is doing is a sensible policy. there is a lot of disagreement there as well as agreement. the disagreement comes from the fact that many people believe they will be issuing too much money and that will eventually result in inflation. if we look at commodity prices and gold prices and the things that are usual indicators of a fear of inflation, we are beginning to see those indicators show that kind of fear. i think many scholars worry about what the fed has been a. doing. alan greenspan has been blamed at the time for keeping interest rates low at the beginning of

the 2000's. he was afraid of deflationary and he was afraid that unemployment was too high. now, he is being criticized for that and ben bernanke is being praised for doing exactly the same thing right now. we will not know until well into the future whether this has been a sensible policy. host: one of the key oversight players will be congressman ron paul will oversee the committee that oversees the treasury. guest: he will be more skeptical about the fed. the fed is a remarkable institution. there is a substantial argument, a good argument, i think -- and in fact boatpeople left in the right make this argument -- they say in their rear leg room --

regulatory responsibilities, in a major way caused a financial crisis but when congress can around to voting for what to do about the financial system and what kind of powers to hand out to the regulators in town, the fed got almost all of them and3 . it is remarkable the fed survives these things time after time. host: our line for independence, good morning to caller: happy holidays, gentlemen. i can't abide what i consider these been coming from this gentleman. it shills for the banks. i am calling from ground zero, sarasota, fla., a fort myers. the headlines in the newspaper refused days ago --

foreclosures, new wave coming, more people lose their homes. the decimation in this area has been unbelievable in the last couple of years. i will not -- i have also read quite widely about how this was caused. i have read neutral observers. i have read several books. i read the major newspapers. no neutral observer that i have read gives a huge amount except for the legislation passed in the late 1990's with the clinton administration and gramm bill -- but the overwhelming people i read it -- i have heard from mortgage barker's -- brokers in this area -- it was the big investment houses on wall street and the banks that were pushing

these loans. it was because they would shop these things up and get the rating agencies to put aaa where did not belong and they would sell them around the world and get 6% or 7% and they could not get enough of these mortgages. when the brokerage houses were pushing these things and leverage up with insurance -- host: we also have a twitter saying why did the republican members of the commission issue a report that blames only the government. wasn't the market to blame as well? caller: let me leave you with a quote -- several months ago when the banks started raising credit card rates in the midst of this decimation that is going on, senator durbin said on national television, "there is not much we can do about this. the bank's own cost."

us." guest: there is an awful lot of material to respond to. i think it is important that people wait on their judgments until they have seen the report of this commission. it is not only the majority report but whatever minority report there is. the facts are not fully known. unfortunately, much of this material was never made public to the extent that was made public, it was not understood at the time. there is a substantial case here and i have tried to make it, that government was bought by air of many of these loans, these mortgages, that you are complaining about which are failing even to debris the reason these mortgages were made because the government was standing there buying them. the mortgage brokers and the other originators had plenty of reason to make these loans.

the loans would go to the government and was not only the government. i want to make that clear. the private sector was doing this, too but to a lesser degree. the companies like countrywide were buying these loans and their packaging them and selling them privately to investor. that was a minor portion. that was about 1/3 of the bad loans that were made. 2/3 were made by the government. unfortunately, it is not known now about the role of the government in making sure these things happened. when the report is out, maybe there will be more information and some of those neutral observers that you're talking about will change their minds. host: 1 more email -- the country continues to live with the fallout from a financial crisis. it is clear you don't agree with whatever the report will say.

can you let us know what actually did cause the financial crisis? guest: i have tried in this discussion and in what i have written that will eventually be part of the report of the commission to say that we have to look at who was holding the bad mortgages when the crisis began? the most important question that the commission should be dealing with, i am not sure they ultimately will, but the most important question is -- what caused the decline in underwriting standards that we had in this country? we used to have a requirement that to buy a home, you had to have 10%-20% down payment, a job and in income and other debts had to be within come kind of limit. -- within some kind of limit. those standards deteriorated from 1992 until the financial

crisis occurred in 2008. why did that happen? the reason i think it happened based of my research and some of the material i have seen with my work on the commission is that the government wanted those standards to decline because they wanted more people to be able to buy homes so they had to reduce the underwriting standards and so these people would have credit. that, unfortunately, cause the creation of 19 million really bad and risky loans. the private sector did the same but to a much lesser extent they did 1/3 and the government did 2/3. it was the collapse of the week mortgages that ultimately caused a financial crisis. host: on -- from twitter -- we need to return to times when banks needed to hold on to mortgages so they would be more

careful guest: that's true, but the banking system is not large enough to finance all the mortgages in the united states. we have a much bigger finance issue with mortgages than simply the banks. the banks take deposits, but the number of deposits that commit to the banks in the united states is too small to support all of the mortgages americans need for their homes. we have to have some sort of supplemental system. we have been using a system called securitization where mortgages are packaged and sold to investors a brown the world. that is a good system. it works very well for car loans and other kinds of financial instruments. it should also work for mortgages. in this case, it did not. one of the things, in the case of mortgages, it did not. we have to look more carefully

at why the underwriting standards for these mortgages declined so substantially from a beginning of 1992 when a new affordable housing requirements were placed on fannie mae and freddie mac up until 2008. my own view based on my work is to say that it happened simply because the government wanted those standards to decline in order to provide mortgage credit to a larger number of citizens. host: our last call comes to us from nashville, tenn., democrats' loss caller: 9. line. the republican line is to protect the banks. they will now find a reason to regulate. -- they will never find a reason to regulate. clinton came to the middle which

is another term for being a slave. guest: if we are going to make charges like this to one another, we will never settle these issues. the republicans do not always oppose regulation. i think the republicans oppose regulation went adds costs, reduces innovation, and change. in my case and the case of many other people, we need some regulation in the mortgage area. we have a market failure there in the sense that, exactly what i was just talking about, underwriting standards sestet -- declined substantially. we had standards that required mortgages to be the way they were before 1992, that is a down payment, a substantial down payment and the person taking out the mortgage have to have a job and income, then mortgages

would be much better assets and would not have had the kind of collapse we had in the financial isis in 2008. >> tomorrow on how changes to the tax code will reflect on paychecks. then they look at the ability of u.s. to prevent a domestic and foreign terrorist attack. we'll also talk about provisions in the intact build the robo to certain industries and tax -- we will also talk about provisions will also talk about provisions in the tax bill that benefit

certain industries and textures. >> you will hear remarks from joint chiefs of staff james car right and undersecretary. this is about half an hour. >> thank you for joining us this afternoon. afternoon. we have michele fornoy and joint chiefs of staff member team's corporate. >> next jicama we will complete a review of our implementation of the strategy. of the strategy. the core strategy in the fear

remains unchanged. the review found that will challenges remain, there is real progress that we can build on. while there are improvements to be made, we do not anticipate any major shifts in our 70 going forward. over the past year, -- in our strategy going forward. as the president noted earlier, al qaeda senior leadership in the tribal region are under more pressure than any . . -- than any point.

our postured effort to counter threats will continue unabated. pakistan is central to our efforts to defeat al qaeda and prevent its regeneration in the region. the past year, our relationship with pakistan has improved considerably. improved considerably. however, in order to ensure their gains against core al qaeda are durable, we must continue to make progress to limit centurions for its networks. in afghanistan, for the first time ever, we have assembled the necessary resources and put in place an integrated military approach partnered with the afghan government. our gains are setting the groundwork to set up responsible

reduction of u.s. forces in 2011. we are pushing the taliban out of their strongholds. insurgent influence has been degraded through increases in partner counterinsurgency programs. while considerable, this progress does remain fragile and reversible. a number of challenges remain and we expect the taliban to continue to fight back in response to our efforts. this is a clear-eyed assessment. going forward, our challenge is to consolidate and bill of the progress we made in 2010. more the next six months, our policy agenda will focus on how we can adjust our approach to

solidify these gains. but we believe we are on a path to begin a transition -- to transition responsibility to the afghans in early 2011 and have them in the lead nationwide in 2014 in accordance with the time line established by president obama, president karzai, and our nato allies in lisbon. finally, i would like to give special thank you and holiday wishes to our troops serving in afghanistan and to their families. it is their contributions and sacrifices that make this progress possible. we're very grateful for that. >> let's start left to right. >> you start to see more people come out and question the whole strategy. there's a report that came out that says that, if you do not

see real progress by july, you should look at a change in mission, a much different mission, strict counter terror training and training the afghan security forces. in general, i am interested what you have to say about this. you came up with that kind of a plan for the vice-president and you may be chairman of the joint chiefs next month. i am interested to know what you have to say about the appeared >> i will discount all the -- about that. >> i would discount all the rumors at the end of the statement. the bills should be constantly adjusted to the realities of the battlefield. what we have given general petraeus is a force that has the ability to do both counter- terrorism and the calling-type activities. the question becomes what is the question becomes what is the -- and the callin coin-type

activities. we are at 18 months on a 24- month time when that was set out as one of the original metrics, which is measured off of the marines arriving in helmand province in july 2009. we have six months in which we would expect to see progress in those areas, particularly with the marines in helmand proper. that will give as good in sight as to whether or not people -- people have called this proof of concept decision -- but does that metric really hold up? we have the right balance? what lisbon davis was the idea of 2014 -- what lisbon gave us was the end of 2014. -- what lisbon gave us was the idea of 2014.

post-2014 is the realization of an enduring partnership should that go forward and what is the character of that partnership? we have to be real lasted -- met to be realistic about that partnership and -- we have to be realistic about that partnership, what are the conditions on the ground that would drive it based on the strategy we take. >> he did not see the marines coming out in several years. >> it is a question of how much. if what we are saying that they will be there in the exact numbers and character allocation that we are in now, then no. but will marines be there for an extended time? yes. it will be measurably less than what it is today and in a very

different world than what it is today. >> everybody has talked about the pressure that the al qaeda leadership is under. what about the other groups in pakistan, the ones who are potentially killing american soldiers in afghanistan? will they do anything to diminish their capability to conduct their cross-border operations? can the u.s. succeeded in afghanistan as long as those safe havens in pakistan exist? >> do you want me to take it? i see this sanctuary issue and then the extremist groups that are associated with it, particularly those a comeback across the border into afghanistan, as one of the strategic vulnerability is. -- vulnerabilities.

from unilateral u.s. activities to unilateral pakistan activities, the question is, as we go through time, can we build the confidence? the ideal way here is that pakistan is a sovereign country. pakistan is handling pakistan's challenges. but the challenges are a contribution to our activities rather than potentially a detriment. what i have seen in my time, in visiting and in talking, is that i would never have guessed that the top of activities that the pakistanis are in beijing on at their borders -- are engaging on at their borders, we would not have hope to see in that -- we would not have hoped to the scene that 15 months ago. so are we seeing the ability to

go after this threat in the coordination and cooperation? i think we are. the joint centers that we have along the border where we compare notes and the exchange with each other, the monthly meetings that we have now between the commanders on both sides of the border to coordinate the crossing of the borders and make sure that the trails and lines were troops come across an ammunition comes across are being monitored and interdicted on a regular basis -- that activity is moving along faster in the last two months than it has in the preceding 18 months. to me, it is moving in a positive direction. do we have the exact same in states all the time? no. the pakistanis are worried about the threats to their country first. but is the core mission and the cooperation improving? yes, daily and immeasurably. i am relatively positive there, but i still count this as a

strategic vulnerability. >> what about impact? has their ability to conduct cross border operations as of the state been measurably or significantly diminished? >> measurably diminished. we have been interdicting. we have been working with the pakistanis to interdict cross border operations, both in the stand in the south. is it enough? not yet. but it is in fact turning in a direction and accelerating in a measurable pace. while we would want more, it is that the listening to have an effect. effect. >> from the outside, at the outset of the development of the strategy, we have seen the two

deeply interrelated. certainly, as we degrade al qaeda's ability to find sanctuary and decrease the ability for the pakistani military and the afghan military, we create a situation where you have more local and regional capacity to deal with the problem. but, as the general said, that sanctuary is of strategic advantage for the taliban, for al qaeda, for the syndicated groups. we have to work together with the pakistanis to diminish that over time. >> increased u.s. development and economic aid to pakistan would be our best strategy for putting up the armed forces and working with the aftereffects of the flood. you think that is a key element

in our alliance to pakistan? i have a separate question for you. >> giving the of stand-downs' in our historical relationship with pakistan, they fear our abandonment. there calculuses very much affected by the level of commitment they feel from loss to the region, to work with them in a strategic partnership. that partnership test of the more than simply counter- terrorism or in the military domain. it needs to be broad ranging as secretary clinton described. i do think that, in broad terms, committing to help the pakistani government meet the needs of the pakistani people is part of building a strategic partnership. in a more pragmatic sense, the military is, in many areas, very engaged, unable to do other

things because of that lack of civilian capacity. with more cans -- with more civilian capacity, we can help them build up. we can focus more on the counter terrorism and counterinsurgency operations we want to be working with them. >> the best one had -- the best for had we had in california, there is a start issue. if the missile defense program does not work, it does not matter. how concerned are you? how concerned are you? >> there is a new interceptor that has some days -- has some new capabilities built into it. the tests, until now, we have had to fillers, but there have been issuing a tests from the --

we have had two failures, but there have been a series of access from the ground up. this has been introduced, but only selectively. i am a the least bit concerned that we do not have the capability to do feet and that roof threat -- that rogue threat. we do not know today what the cause of the failure was yesterday. as we begin to understand that, is it in fact the interceptor? is it some other component of the system? that is what has to be worked out. you want to eliminate as many of those variables as possible and zero into where the challenges. what is new in the system is that interceptor. that is where we're focused right now. i will be conservative in my recommendations about how many of those warheads are used

versus how many we retain of the older configuration should any threat to the united states can be handled. >> this is a primary defense system appeared >> this is a new version, an upgraded version. it is not the primary version. the primary version is fielded. we want this capability because it gives us some things that we did not have in the older version. i am not worried because i have the edge. the question is, was it to failures of the same milk or was it to different failures. we just do not know the answers yet. >> i would like to ask for clarification over what i think is a confusing message for the public. we are being told that we are on track to start withdrawing troops in the middle of 2011.

at the same time, the decision for that withdrawal will be conditioned space. what would prompt a reconsideration or change from the track that we are on right now in the first half of 2011? >> the july 2011 to date and as the surge period. the pace, the scope of the drawdown will be based on conditions on the ground and our assessment of those by the spring and summer time. i do not think it is inconsistent. it is very important that we all understand that there is a transition process. as the president said, there is a new process. we are already starting in cobble and other places to

kabul andrespond -- in cobbl other places to transfer responsibility. in july, we expect some of the forces that are freed up because of that transition to be invested in other places and some will be able to come home. but narrowing exactly what that looks like will have to be closer to that time to make a good judgment about the conditions. >> i would jump in and say this. i agree with everything that michelle has said. i would also add that we will judge what has been called this proof of concept and how well proof of concept and how well the queecoin strategy is workin. when we go from the clearing phase and security to the whole phase, at the whole face, the idea is that we will be able to

bring in civilians to start to bring governance services to the people. what we have learned with usaid is that there is a clearing in that phase where it is still too dangerous for civilians to be there. even if they are their, their mobility is so limited by things like ied posset tetra -- ied's etc. rather than losing a couple of months between the clearing phase and the whole face, what we're starting to find is that we can reduce that time. if you have locals who can tell you that that truck has never been there before or that street has never been busy like that before, we took some of these types of tactics from our experience in colombia and other places where the locals can tell you substantially more than you will ever be able to know with all of the technology that

americans can bring to the deal. on the other end of this activity, in transitioning to build, we have found that our ability to bring on line at scale enough afghan civilians to be able to partner up with, to transition this governing activity or the supporting activity, has been slow. we have improved the ability to bring along and away when they are ready to turn to them. the entire process has helped us make the transition and the movement and that clai coin process much faster. faster. >> you have two activities.

they put 140,000 troops there. they are in the whole phase. they're providing security in areas they have cleared. that has been there challenges historically. they have cleared it and the locals do not have the confidence that they will stay and you lose the confidence side of the equation. but we also have the floods. the infrastructure there to move the forces up into those areas, to be able to have the supply, that is also inhibiting, along with the draw on forces. the question is when? not if. but i cannot give you a when? i would not put a july 2011 did on that because i do not know that i could do that. it is a question of when they will start to be able to realize their ability to unhook in areas that they have stabilized when

the structure will support the movement and what priorities are set. that will be a decision on their part. >> the rogue elements and isi, some members of the government feel it is much higher than the pakistani government. and you agree with that? >> i cannot think i have a factual basis to make that claim. i do not know. i just do not know that. >> you seem to be saying that, in july 2011, there will be another assessment. you talked about a realistic assessment about the rate and the pace of the possibility of withdrawing forces. you're now talking about this two-year process.

we please tell me to understand what is now the assessment you will do in july? these two years you're talking about, does the surge and two years after it began? -- does the searcandthe surge es after began? >> you have six more months to go through that. we will continue to assess how well the coin strategy is working. that is an ongoing assessment that will continue to occur. once you get to july 2011, you have entered into a phase where we are starting to define the transition from the activities that we're currently conducting and the surge and the general presence of the forces, how we will move to zoey transition to an afghanistan-led activity -- how we will transition to and

afghanistan-led activity. what is the rate at which we can drawdown? what does the strategy look like during that drawdown? what adjustments will need to be made? that will be a constant assessment. we do not have the only one metric bernau. what lisbon gave us was 2014, what our expectation and trading and having the afghanis take of the mission and what it looks like after 2014. >> one was it decided -- i missed it summer, this to your timeframe. -- i missed it somewhere, this two-year timeframe. >> that was a metric that was established in the review of the strategy here earlier. what we said was that a conservative estimate of when you should see progress in a

coin progress would be in 15 to 24 month. >> south korea said overnight >> south korea said overnight that it would start drills in yeonpyeong island. >> it is not a new activity and it is not one that the north koreans have not seen on a routine basis. it is out there on the islands. we're watching to make sure that all of the halt hillary -- that all of the artillery is set up. we have monitors that are with the south koreans to make sure

everything, from the standpoint of training, goes right. the impact area is out in the water, not pointed towards the land. all of that is understood. yesterday, we had the announcement of that by the south korean government. they laid out exactly what they would be doing it when they would be doing it so that we would take any ambiguity out that was at all possible. they also put that out on the web in as many different ways to ensure that anybody in that area knows what will go on and when it will go on, including a notice to -- if that is misunderstood or taken advantage of as an opportunity, if north korea were to react to that in a negative way and fire back at those firing positions on the islands, that would start potentially a chain reaction of firing and counter firing. what you do not want to have happen out of that is the loss

of control in the escalation. that is the concern. >> how many troops will be there at the time? are u.s. troops at risk or vulnerable to a north korean reaction? >> bernau, what we're talking about -- -- right now, what we're talking about is 15 and about six american troops, trainers and observers who are out there. a larger presence is the media that will be out there. they are there from all over the world. there will also be a u.n. contingent out there. >> we have time for one more question. maybe two. >> when we were out there with secretary day stay in august, -- secretary gates in august, are

you confident that the pakistanis will step up operations when called upon? if not, what is the alternative for the u.s.? >> from my perspective, one, the preferred method is for a partnered activity. it could be just the pakistanis on their side of the border in the afghanis and i sat -- and isap on the other side of the border. we can make the activity as efficient as we can. but this is why talk about measurable progress. we're now exchanging information on a regular basis, scene activities that look a novelist and confronting them, either on the afghan side of the aborted or the pakistani side of the border -- side of the border or the pakistani side of the

border. we have to started to see that in the last couple of months. we did not just have one or two incidents. we now see regular activity that says that those vehicles should not be crossing, those people should not be crossing, do not know why they are up in that area, and it allows us to close on the area and do something about it. sometimes, it is just a path. sometimes, in fact, it is that behavior. the question of going further to unilateral action, that would be an absolute last measure. it has so many other impacts on the relationship. you would really hate to end up in that position. >> this puts more pressure on july. do you foresee any need for more troops, even enablers, to make a

bigger difference? >> i would not say more troops. i would say maybe the character of the forces that we have out there may change, whether is more isr and intelligence-type capabilities, greater mobility. capabilities, greater mobility. as we go to different areas , the area and the firepower they have needed in that area has led them to lose a few tanks. the question is what is the appropriate activities for where you end up and the challenges you face? i see a change in the judgment in the character of the force, not the quantity. not the quantity. >> how can you say now that our troops will come out in july 2011? "condition,"sing

-- the way i am using "condition," is it in the whole phase or the clear phase? what drives the pace at which you can clear an area and move into that coin strategy. >> but the president and others said that the troops would come out 2007. >> no, they said that during 2011 to 2014 there would be a drawdown. >> how can you say that? >> because we are seeing progress in that first 24 months. >> you're already seeing progress. how can you remove troops? >> we are already moving troops out of some areas and moving them to other areas. we have seen progress in areas that we intended to measure. >> all right. thank you very much. thank you very much.

[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> supreme court justice elena kagan talks about what she wanted to become an attorney. in the interview took place in her temporary chambers in the supreme court. >> i think i became a lawyer for all the wrong reasons.

i was a law school dean. i used to tell people of the time, do not go to law school just because you do not know what else to do. but the truth was that that is why i went to law school. i was not sure what else i wanted to do and i believe all these things that, while keeping your options open, be in a degree that you could use for anything. but i was not at all sure that wanted to practice law when i started law school. but i thought, well, what could be wrong with having a law degree and then deciding. then i got to law school. i was amazed at the time that i absolutely loved law school and studying law in a way that i do not think i had loved any other part of my academic experience. i have always been a good student, but i had never felt that kind of passion for subject matter. i like thinking about law. i like thinking about law. i liked thinking that law