[Senate Hearing 109-838]
[From the U.S. Government Publishing Office]
S. Hrg. 109-838
EXAMINING DOJ'S INVESTIGATION OF JOURNALISTS WHO PUBLISH CLASSIFIED
INFORMATION: LESSONS FROM THE JACK ANDERSON CASE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 6, 2006
__________
Serial No. J-109-81
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 13
Grassley, Hon. Charles E., a U.S. Senator from the Stae of Iowa,
prepared statement............................................. 139
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 141
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Anderson, Kevin, Fabian and Clendenin, Salt Lake City, Utah...... 18
Feldstein, Mark, Director of Journalism Program, and Associate
Professor of Media and Public Affairs, School of Media and
Public Affairs, George Washington University, Washington, D.C.. 26
Friedrich, Matthew W., Chief of Staff and Principal Deputy
Assistant Attorney General, Criminal Division, Department of
Justice, Washington, D.C....................................... 3
Schoenfeld, Gabriel, Senior Editor, Commentary, New York, New
York........................................................... 23
Smolla, Rodney, Dean, University of Richmond School of Law,
Richmond, Virginia............................................. 21
QUESTIONS AND ANSWERS
Responses of Kevin Anderson to questions submitted by Senator
Specter........................................................ 39
Responses of Mark Feldstein to questions submitted by Senator
Specter........................................................ 45
Responses of Matthew Friedrich to questions submitted by Senators
Specter and Leahy.............................................. 49
Responses of Gabriel Schoenfeld to questions submitted by Senator
Specter........................................................ 68
Responses of Rodney Smolla to questions submitted by Senator
Specter........................................................ 76
SUBMISSIONS FOR THE RECORD
Anderson, Kevin, Fabian and Clendenin, Salt Lake City, Utah,
statement and attachment....................................... 81
Associated Press, Mark Sherman, Washington, D.C., April 18, 2006,
article........................................................ 90
Baltimore Sun:
April 20, 2006, editorial.................................... 92
April 22, 2006, article...................................... 93
CBS News, Washington, D.C., April 19, 2006, article.............. 95
CBS Worldwide Inc., Washington, D.C., April 19, 2006, article.... 97
Chicago Tribune, April 23, 2006, article......................... 99
CNN, Washington, D.C., April 20, 2006, transcript................ 101
Editor & Publisher, New York, New York, article.................. 106
Feldstein, Mark, Director of Journalism Program, and Associate
Professor of Media and Public Affairs, School of Media and
Public Affairs, George Washington University, Washington, D.C.,
prepared statement............................................. 107
Frankel, Max, New York, New York, letter and attachment.......... 116
Friedrich, Matthew W., Chief of Staff and Principal Deputy
Assistant Attorney General, Criminal Division, Department of
Justice, Washington, D.C., prepared statement.................. 135
Guardian, April 21, 2006, article................................ 140
Los Angeles Times, Nick Timiraos, April 19, 2006, article........ 143
Miami Herald:
April 24, 2006............................................... 144
May 2, 2006.................................................. 145
New York Times, April 19, 2006, article.......................... 147
National Public Radio (NPR), Washington, D.C.:
April 19, 2006, transcript................................... 149
April 23, 2006, transcript................................... 151
Presstime, Arlington, Virginia, May 2006, article................ 152
Red Bluff Daily News, April 22, 2006, editorial.................. 158
Salt Lake Tribune, Salt Lake, Utah, article...................... 159
San Francisco Chronicle, April 25, 2006, article................. 161
Schoenfeld, Gabriel, Senior Editor, Commentary, New York, New
York, statement and attachments................................ 163
Seattle Post-Intelligencer, April 20, 2006, article.............. 204
Smolla, Rodney, Dean, University of Richmond School of Law,
Richmond, Virginia, statement.................................. 205
Star-Ledger, Newark, New Jersey, April, 22, 2006, article........ 221
TPM Muckraker.com, April 19, 2006, article....................... 222
Times-Tribune, Scranton, Pennsylvania, April 20, 2006, article... 224
Wall Street Journal, April 19, 2006, article..................... 225
Washington Post:
April 19, 2006, article...................................... 226
April 20, 2006, editorial.................................... 227
April 25, 2006, article...................................... 228
April 29, 2006, commentary................................... 229
EXAMINING DOJ'S INVESTIGATION OF JOURNALISTS WHO PUBLISH CLASSIFIED
INFORMATION: LESSONS FROM THE JACK ANDERSON CASE
----------
TUESDAY, JUNE 6, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9:30 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Grassley, Kyl, Leahy, and
Feingold.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. It is 9:30, so the Judiciary Committee
will proceed with this hearing on the subject of examining the
efforts by the Department of Justice to control leaks by
newspapers involving classified information.
We know that leaks are a fact of life in Washington, D.C.,
and really virtually everywhere. There is an old adage that the
ship of state leaks at the top, and we saw recently that it was
true with the President of the United States making a
disclosure. There are very important national security
interests involved in maintaining the sanctity of classified
information. At the same time, there is a tradition of
ferreting out governmental wrongdoing--waste, corruption,
inefficiency--by disclosures to the press, which function as
the guardians of the public in many, many cases. Leaks are made
for a variety of reasons, and while they have a very important
social purpose, they also have the potential for harmful,
deleterious effects on national security.
This hearing will be looking into one aspect of expanding
Executive authority, which we have seen in recent times with
the warrantless national surveillance, with the signing
statements where the President chooses which parts of
legislation he likes and which parts he does not like, with the
search and seizure on Capitol Hill, and a growing concern that
the Congress of the United States has not exercised its
constitutional responsibilities on oversight.
There have been a series of activities which give cause for
concern. In April of this year, a CIA employee was fired for
allegedly disclosing the existence of secret CIA facilities in
Eastern Europe. A Washington Post reporter conducted an expose
based on that information and won a Pulitzer Prize. We have
seen an investigation into the disclosure of the identity of
CIA agent Valerie Plame, leading to the jailing of New York
Times reporter Judith Miller for some 85 days.
In response, Senator Lugar introduced legislation, which
was modified by the Committee and introduced again, which would
grant protection to newspaper reporters on a shield. The
proposed legislation is very carefully crafted to provide an
exception if national security is involved. But it has to be
genuine national security. The Valerie Plame investigation
started off with a national security purpose but shifted at one
point to an investigation as to whether there had been perjury
or obstruction of justice before a grand jury. And while those
are serious charges, they do not rise to the level of a
national security interest which would warrant incarcerating a
reporter. That ought to be in our society the very, very last
report. So the overtone of that statute will be in issue as
well.
There has recently been the suggestion that newspapers and
newspaper reporters can be prosecuted under a criminal statute
which prohibits the disclosure of classified information.
Highly doubtful in my mind that that was ever the intent of
Congress, but those are the words which can be construed in a
way to warrant such prosecution, different from another statute
which provides for prosecution in the event that there is an
assist to an enemy of the United States.
In the famous Pentagon Papers case, United States v. New
York Times, in a dictum Justice White said, concurred in by
Justice Stewart, that the statute would not provide for
injunctive relief to stop a newspaper from publishing material,
but would provide the basis for a criminal prosecution against
a newspaper.
So these are very, very serious issues which we are looking
at today, especially in the context of expanding Executive
power in many, many directions.
We have as our first witness today Matthew Friedrich, who
is the Chief of Staff of the Criminal Division, Principal
Deputy Assistant Attorney General. Mr. Friedrich received his
law degree from the University of Texas, bachelor's from the
University of Virginia. He clerked with Judge Royal Ferguson in
the United States District Court for the Western District of
Texas. In 1995, he joined the Tax Division of the Department of
Justice. In 1998, he returned to Texas as an Assistant U.S.
Attorney. In 2001, he became an Assistant U.S. Attorney in the
Eastern District of Virginia, and now he holds the position, as
noted, of Principal Deputy Assistant Attorney General.
Thank you for coming in today, Mr. Friedrich. I would
appreciate it if you would stand to take the oath. Do you
solemnly swear that the testimony you will give before the
Judiciary Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. Friedrich. I do.
Chairman Specter. Thank you. You may be seated, and we look
forward to your testimony.
STATEMENT OF MATTHEW W. FRIEDRICH, CHIEF OF STAFF AND PRINCIPAL
DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Friedrich. Thank you, Mr. Chairman.
Mr. Chairman and members of the Committee, thank you for
the opportunity to discuss with you today the difficult issue
of unauthorized disclosures of classified information,
sometimes referred to as ``leaks.'' I intend to explain the
position of the Department of Justice with respect to the scope
of the relevant statutes as they relate to the press and the
willful dissemination of classified information. In doing so, I
cannot comment on any pending case or investigation.
In response to a recent series of leaks of classified
information, President Bush has stated that such leaks have
damaged our National security, hurt our ability to pursue
terrorists, and put our citizens at risk. Porter Goss, then-
Director of the Central Intelligence Agency, stated in February
of this year that leaks have alerted our enemies to
intelligence-collection technologies and operational tactics
and ``cost America hundreds of millions of dollars'' to repair
the damage caused by leaks. The WMD Commission made similar
findings in its report. Members of Congress in both the Senate
and the House have repeatedly acknowledged the damage caused by
leaks, particularly in this post-September 11th environment.
The Department of Justice is committed to investigating and
prosecuting leaks of classified information, and Congress has
given the Department the statutory tools to do so. Several
statutes prohibit the unauthorized disclosure of certain
categories of classified information, the broadest of which is
Section 793 of Title 18, which prohibits the disclosure of
information ``relating to national defense.'' Also, Section 798
of Title 18 prohibits the unauthorized disclosure of
information relating to communications intelligence activities.
On May 21, 2006, Attorney General Gonzales was asked about
the possibility of prosecuting members of the press for
publishing classified information, and he stated, in part, as
follows: ``There are some statutes on the books which, if you
read the language carefully, would seem to indicate that that
is a possibility.'' There has been considerable attention paid
to the Attorney General's remarks. It is critical to note,
however, that the Attorney General is not the first one to
recognize the possibility that reporters are not immune from
potential prosecution under these statutes. Many judges and
commentators have reached the same conclusion. For example, as
I believe you pointed out, Mr. Chairman, in the Pentagon Papers
case, there may be such a precedent there. In that case,
obviously, the United States sought to restrain the New York
Times from publishing classified documents relating to the
Vietnam War.
While the Supreme Court did not decide the question of
whether the First Amendment immunizes the press from
prosecution for publishing national defense information given
to them by a leaker, five concurring Justices questioned the
existence of such blanket immunity. In his concurring opinion,
Justice White stated: ``[F]rom the face of [the statute] and
from the context of the Act of which it was a part, it seems
undeniable that a newspaper, as well as others unconnected with
the Government, are vulnerable to prosecution under 793(e) if
they communicate or withhold materials covered by that
section.''
Further, the Court of Appeals for the Fourth Circuit has
affirmed that the First Amendment does not prevent prosecutions
under 793 for unauthorized disclosures of classified
information and did so over the objection of various news
organizations that appeared in the case as amici to support the
defendant's First Amendment arguments. Likewise, it is the
conclusion of legal commentators with respect to Section 798
that reporters are not exempt from the reach of this statute if
the elements of the statute are otherwise met.
I would emphasize, however, that there is more to consider
here beyond the mere question of the reach of the laws as
written. The Department recognizes that freedom of the press is
both vital to our Nation and protected by the First Amendment.
The Department has never in its history prosecuted a member
of the press under Section 793, 798, or other sections of the
Espionage Act of 1917 for the publication of classified
information, even while recognizing that such a prosecution
could be possible under the law.
As a policy matter, the Department has taken significant
steps to protect, as much as possible, the role of the press in
our society. This policy is embodied in Section 50.10 of Title
28 of the Code of Federal Regulations, which requires that the
Attorney General approve not only prosecutions of members of
the press but also investigative steps aimed at the press, even
in cases where the press is not itself the target of the
investigation. This policy--voluntarily adopted by the
Department--ensures that any decision to proceed against the
press in a criminal proceeding is made at the very highest
levels of the Department.
In a press conference last week, the Attorney General
stated that the Department's ``primary focus'' is on the
leakers of classified information, as opposed to the press. The
strong preference of the Department is to work with the press
not to run stories containing classified information, as
opposed to other alternatives. The Attorney General has made
consistently clear that he believes that our country's national
security interests and First Amendment interests are not
mutually exclusive and can both be accommodated.
I appreciate very much the opportunity to appear before you
and would be happy to answer your questions.
[The prepared state of Mr. Friedrich appears as a
submission for the record.]
Chairman Specter. We have been joined by Senator Grassley.
Senator Grassley, would you care to make an opening statement?
Senator Grassley. I think I will put the statement in the
record. It is a very short statement. I just think I will put
it in the record.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Chairman Specter. Mr. Friedrich, you say--I believe your
words--that it is undeniable that the Department of Justice has
the authority to prosecute a newspaper and a reporter for
disclosure of classified information?
Mr. Friedrich. I believe I was quoting one of the
concurring opinions in the Pentagon Papers in using that word.
Chairman Specter. Well, aside from the concurring opinion
of Justice White, joined in by Justice Stewart, is it the
position of the Department of Justice today that Section 793
would warrant--would authorize the prosecution of a newspaper
and a reporter for publishing classified information?
Mr. Friedrich. I think the answer to that, Senator, is that
the Department has consistently interpreted that statute so as
to read it as to apply to anyone to whom the elements of the
statute--
Chairman Specter. You are giving me a yes answer?
Mr. Friedrich. I am, sir.
Chairman Specter. And is it the position of the Department
of Justice that under Section 798 a newspaper and a reporter
can be prosecuted criminally for the disclosure of classified
information?
Mr. Friedrich. I would provide the same answer there,
Senator.
Chairman Specter. The answer is yes?
Mr. Friedrich. Yes.
Chairman Specter. So you are saying that the New York Times
and its reporter, James Risen, are subject to prosecution for
the disclosures last December 17th about the surveillance
program without warrants?
Mr. Friedrich. Obviously, Senator, I can't comment as to
any particular case or any specific matter. As a general policy
proposition, I think the Department has consistently taken the
position with respect to those particular statutes that it does
not--they do not exempt a class of professionals, any class of
professionals, including reporters, from their reach. I think
it is important at the same time to bear in mind what the
Attorney General said recently, which is that our primary focus
is on the leakers themselves, as opposed to members of the
media.
Chairman Specter. I understood what you said about primary
focus, but primary focus leaves latitude for a secondary focus.
Mr. Friedrich. It would.
Chairman Specter. Has the Department of Justice considered
the prosecution of any newspaper or any newspaper reporter for
the disclosure of classified information?
Mr. Friedrich. Again, Senator, you know, I don't think it
would be appropriate for me to comment as to whether or not--
Chairman Specter. I am not asking you about a specific
case. I did and you declined to answer, and I might have
pressed it but I am not. But I am asking you whether there is
any case, without specifying the case, where the Department of
Justice has considered prosecuting a newspaper or a reporter
for the disclosure of classified information.
Mr. Friedrich. With respect, Senator, I think that I have
to decline to answer that question as well. I don't think it
would be appropriate for me to give an indication one way or
another, and I hope people don't read anything into my answer
one way or another.
Chairman Specter. Well, I disagree with you, Mr. Friedrich.
I understand your point in not talking about a specific case. I
do not agree with it, but I understand it. But I do not even
understand your point in declining to answer whether the
Department of Justice has ever considered it. The answer to
that would lead to some other questions as to--go ahead. I see
you want to speak.
Mr. Friedrich. Just to clarify, I heard you initially ask
me is it being considered now. I heard you a moment ago ask has
it ever been considered. My understanding is there are
historical examples. I think some of the later panelists may be
able to comment more cogently than I can about historical
examples in which that possibility--
Chairman Specter. I am not interested in history this
morning. I am interested in current events. I am interested to
know whether this Department of Justice, say the Ashcroft
Department or the Gonzales Department, has ever considered the
prosecution of a newspaper or a reporter for disclosure of
classified information.
Mr. Friedrich. With respect, Senator, I believe I have to
decline to answer that question.
Chairman Specter. The Lugar bill, which has been
significantly modified in Committee, provides for a reporter's
shield but has an exception if there is a matter of national
security, and it essentially calls upon the court to undertake
a weighing of the public interest in the disclosure of the
information to ferret out wrongdoing or the press'
traditionally historic role in disclosing wrongdoing contrasted
with the national security interest involved.
Do you think that that is an appropriate standard for
weighing newspaper privilege contrasted with the interest of
national security?
Mr. Friedrich. As to the general matter of whether such a
privilege should be codified, I believe that the Department has
consistently taken the position that such legislation is not
needed and that the procedures and policies that the Department
has in place with respect to the circumstances in which
compulsory process should be issued against reporters are
themselves a sufficient safeguard.
Chairman Specter. Well, the red light went on, and I do not
usually transgress, but with Senator Grassley's acquiescence, I
am going to ask an important followup question. Do I have your
consent, Senator?
Senator Grassley. You do.
Chairman Specter. I appreciate that you do not think
legislation is necessary, and I am not surprised. The
administration does not think legislation is necessary to deal
with unauthorized surveillance. The administration as yet has
not provided an answer to this Committee on legislation, which
has been pending for weeks, which would give jurisdiction of
that program to the Foreign Intelligence Surveillance Court to
determine constitutionality. Every time the Congress asserts
some oversight authority, the administration pulls back.
When there was a pressure applied to have the Intelligence
Committees informed about the warrantless searches, the
administration declined, even though the National Security Act
of 1947 mandates it for committees.
When this Committee, when the Judiciary Committee became
active, the administration relented and conceded to allow a
Subcommittee of the Intelligence Committee, seven Senators, to
know. And the House at first resisted a Subcommittee and then
finally acquiesced on an 11-person subcommittee, and then only
in the face of the Hayden nomination was the administration
dragged kicking and screaming into complying with the National
Security Act of 1947 to inform the Intelligence Committees.
So I am not surprised that the administration does not
think that legislation is necessary. But my question was not
whether the administration thought legislation was necessary.
My question is whether you think that if there is legislation,
it is appropriate to have a balancing test where a court would
have the authority to weigh the public policy importance of the
national security interest contrasted with the public policy
importance of the disclosure.
Mr. Friedrich. Senator, I think the best way to answer that
is in the context--I know that Deputy Attorney General Comey at
the time provided a statement with respect to the media shield
legislation. This panel also heard from U.S. Attorney Chuck
Rosenberg, who discussed in detail the Department's position at
the time with respect to media shield.
I think the overall objection would be that the media
shield legislation would shift from the executive branch to the
courts the decision as to whether a subpoena is needed, what
the competing interests are, how fast it needs to be issued,
whether or not it is essential to the case. We feel that
those--in terms of the Department's exercise of its
responsibility in this area, I think as to confidential source
subpoenas, something like only 13 have been issued in the last
15 years. That would be on the average something of one a year
or less. I think the historical record would be that the
Department has responsibly exercised its authority in this area
and that, you know, there are going to be occasions when we
need to move quickly.
I accept that the balance you pose is an important one. I
think that the--I would like to think the record of the
Department is that it has exercised its judgment in this area
responsibly. And let's not forget, I mean, there are occasions
when it may be important to move very quickly in terms of the
issuance of compulsory process. I think that the example that
Deputy Attorney General Comey gave--
Chairman Specter. Just a second.
Mr. Friedrich. I am sorry, sir.
Chairman Specter. Go ahead.
Mr. Friedrich. I think, sir, the example that Deputy
Attorney General Comey gave in a prepared statement that he
rendered was an occasion that came up on the afternoon of
September 11th when the U.S. Attorney's Office in San Francisco
wanted to issue a subpoena to a news organization which had
received information, I understand, from some type of source
indicating that bad things would happen on that day. I do not
have any factual knowledge of that situation, but that was the
example that Deputy Attorney General Comey gave, and I think it
certainly highlights the fact that there may be a need to move
quickly, and this legislation I think might compromise that.
Chairman Specter. Well, I will pick up on your point about
shifting the decision from the executive branch to the judicial
branch, which is exactly what I think our Constitution
requires.
Senator Leahy, would you mind yielding to Senator Grassley?
I intruded on his time, and he has a 10 o'clock--
Senator Leahy. No, I have no objection. I came in late as
it was.
Chairman Specter. Senator Grassley?
Senator Grassley. Thank you, Senator Leahy.
When Director Mueller was before this Committee just a few
weeks ago, I asked him about the Bureau's attempt to obtain
Jack Anderson's papers by convincing the 79-year-old widow to
sign a consent form that she says she did not fully understand.
I wanted to know at that time whether that was an appropriate
investigative technique, but Director Mueller said at that time
that he did not know enough about the circumstances to answer
my questions. In preparing to testify here today, I would hope
that you have taken some time to learn the details of what the
agents did in this case and why they did it. So I ask you, Did
the agents who went back and contacted Olivia Anderson without
her family's permission act appropriately?
Mr. Friedrich. Senator Grassley, I think that that is a
question that I am not going to be able to shed light on, but I
want to carefully explain the reasons why I cannot. First of
all, there is a pending trial in the Eastern District of
Virginia called the Rosen and Weissman case, and in that case,
the defense in that case has filed a motion to dismiss the
indictment for prosecutorial misconduct based upon the actions
taken in the Anderson matter. My understanding is that the
district judge denied that particular motion but that that case
remains pending. And since it is a part of pending litigation
or relevant to a part of pending litigation, I don't think that
it is something that I can comment on.
My understanding, however, Senator, is that the Bureau is
following up on the questions you asked and that they intend to
submit some type of response to you. And I don't want to
interpose myself in the middle of that.
Senator Grassley. And your view is that the circumstances
in the Anderson questioning could influence that case, that
other case?
Mr. Friedrich. That was the position--yes, sir. The
position that the defense has taken is that there is a factual
link between the action in the Anderson matter and the pending
investigation that has resulted in a trial in the Eastern
District of Virginia. And since that is the circumstance, I
simply just can't comment on that matter.
Senator Grassley. According to Kevin Anderson, he informed
the FBI that he was acting as his mother's attorney, and he
authorized the first meeting between the mother and the FBI.
However, he says he did not authorize and was unaware of the
second meeting where the FBI got her to sign a consent form.
Can you explain the Justice Department's policy on contacting a
witness who was known to be represented by counsel? And
assuming that the Anderson family is correct with what
happened, did the actions of the agency in this case violate
that policy?
Mr. Friedrich. Certainly, Senator, speaking generically--as
a general matter--there are very specific policies that the
Department has with respect to contact with represented
parties. There are also bar rules that apply as well. I would
say, you know, the general rule as to contact with represented
parties is that, as an attorney, you are not supposed to do it.
There are exceptions to that under certain circumstances, but
certainly as to Department lawyers, those policies exist.
Senator Grassley. Well, then, did the actions of the agents
in this case violate that policy?
Mr. Friedrich. Again, Senator Grassley, with respect to
this specific factual circumstances, I don't have a specific
comment on that for the reasons that I had mentioned earlier. I
will tell you as a general matter there are some distinctions
between the contact with represented parties rules as they
apply to Department lawyers versus FBI agents. There are some
differences between the ways in which those standards apply.
Lawyers are bound by certain sources of law and policies;
whereas, agents, depending on the circumstance, may not be
bound by the same authorities.
Senator Grassley. Well, then, let's go to the issue of
classified information. There is some disagreement whether
these papers contained classified information, and I would
think the family would know more about that than the FBI.
The family has said that the files probably do not contain
classified documents, and the FBI claimed that Professor
Feldstein confirmed it. However, Professor Feldstein denies
that he told the FBI that and says that he has seen no
classified material in the documents. So which is it? Does the
FBI have a solid reason to think that there is classified
information in the files that would be harmful to the national
security if the FBI did not remove them?
Mr. Friedrich. There again, Senator Grassley, I don't
believe I can comment on the Anderson matter specifically for
the reasons that I had mentioned earlier, and hopefully the
Bureau will be submitting some type of factual submission to
you on that.
Senator Grassley. Well, has the FBI taken time to get a
subpoena or search warrant to force that issue?
Mr. Friedrich. Again, with respect, I cannot comment
specifically with respect to the Anderson matter, Senator.
Senator Grassley. Well, Mr. Chairman, I am very
disappointed. We asked some of these questions of Director
Mueller. I will bet that has been more than a month ago, and we
do not have any more answers. And I would think that the
Department would send somebody here to testify that could
answer our questions if they have any respect for this
Committee whatsoever. I yield.
Senator Leahy. I think that answers the question. They do
not have any respect for this Committee. Why in heaven's name
were you sent up here if all you are going to do is take the
Fifth Amendment.
Chairman Specter. I would like to recognize you, Senator
Leahy. Senator Leahy?
[Laughter.]
Senator Leahy. Thank you, Mr. Chairman. I mean, you are
basically taking what could be called a testifying Fifth
Amendment. You should be ashamed of yourself, or your superiors
should be ashamed of themselves. Why in heaven's name were you
sent up here? I mean, you have been asked by friendly
Republicans, no matter what questions you are asked, ``Oh, I
don't think I can answer. I don't think I can answer.'' Why
were you the one picked to come up here?
Mr. Friedrich. Senator, I can tell you my understanding,
that on a staff-to-staff level as between our legislative staff
and the staff of the Chairman, that it was made clear before I
came up here that I would not be able to talk about the
Anderson--
Senator Leahy. Well, this is what happens no matter what,
from the Department of Justice or the FBI or anything else.
Anytime you ask anything where there might have been a screw-up
by this administration, ``I don't think I can answer that. I am
not really taking the Fifth. I just won't answer.''
It is very, very frustrating. There is this arrogance in
this administration against any kind of oversight, probably
because they basically have--except possibly for this
Committee--a rubber stamp Republican leadership that allows
them to do anything they want. But that is what you are doing.
Let me ask you this: Is there any truth to the fact that
some of these papers were looked at because it goes into the
personal life of J. Edgar Hoover?
Mr. Friedrich. Senator, again, with respect to the Anderson
matter, I am not able to comment on that matter at all.
Senator Leahy. So what you are doing, you are sent up here
to be a punching bag. Is that it?
Mr. Friedrich. Senator, again--
Senator Leahy. You don't have to answer. I realize that. It
is like the Attorney General. Is there any questions you guys
are allowed to answer other than your title, the time of day? I
mean, is this sort of like a prisoner-of-war kind of thing?
Mr. Friedrich. Senator, I can tell you that, again, my
understanding in coming up here was on a staff-to-staff level
that I was--I was led to believe that the Chairman's staff was
informed that I would not be able to answer questions about the
Anderson case, precisely for the reasons that I discussed.
I am prepared, and if you will note the statement that I
gave specifically relates to the law relating to the
applicability of the Espionage Act and other statutes that go
to the disclosure of classified information, that--
Senator Leahy. Well, let me ask you a little bit about that
then. We have the Espionage Act. We talk about how that can be
used. It can also be used, if need be, to chill dissent. This
administration has spent billions of dollars--that is billions
with a ``b''--to classify far more material than any
administration in history, including the administration during
World War II or World War I when we had real reason to do it.
We found that in 2004 the Government made 15.6 million
classification decisions. Sometimes they classified something
that had been on a Government website for months or even years.
People had downloaded it thousands of times. Suddenly they say
it is classified.
We know some of this intelligence information was
classified simply to cover up mistakes made by this
administration. In fact, many, many, many, many times things
were classified to cover up mistakes by the administration. If
there was improper classification of intelligence information,
would that be a proper defense to criminal charges brought
under the Espionage Act?
Mr. Friedrich. I think that that would--I think improper
classification might be a defense to certain statutes.
Senator Leahy. The Espionage Act?
Mr. Friedrich. That one I would have to check in
particular. I am not certain.
Senator Leahy. For a moment there, I actually thought I was
getting an answer and I was about to applaud you. It would be
so unprecedented. And I hate to even highlight it because I do
not want you to get fired for breaking precedence with the
Department of Justice. But, you know, if Daniel Ellsberg had
not leaked the Pentagon Papers to the New York Times and the
Washington Post, we may never have known about the official
misconduct during the Vietnam War. If Special Agent Coleen
Rowley had not publicly revealed problems with the FBI's
counterterrorism investigation, we may never have known how
this administration screwed up before 9/11 and failed to
connect the dots. Should Government be able to use the threat
of criminal prosecution to shield the public from revealing its
own mistakes?
Mr. Friedrich. I think the answer to that, Senator, is that
there is the Intelligence Community Whistleblower Act of 1998
that is set up for that specific purpose. If a member of the
intelligence community has concerns about the legality, has an
urgent concern about something that they are working on,
believes it may not be legal, there is a specific process that
is in place that is set up so that they can bring that to the
attention of the Inspector General of their agency and the
matter can be taken up from there all the way to the Hill
Intelligence Committees, if necessary. So I think that--
Senator Leahy. I am talking about people at the Department
of Justice.
Mr. Friedrich. I am sorry?
Senator Leahy. What about with people within the Department
of Justice? Senator Grassley, he and I and others have worked
very hard on whistleblower legislature. But it seems anytime
anybody uses Whistleblower, it is a career ender. They get
shunted aside. They get put into non-work situations. Certain
administrations--and this is something that probably reflects
most administrations--will come down on them like a ton of
bricks if they use it. But you think that is the only
protection, the whistleblower statutes?
Mr. Friedrich. What I was answering, Senator, is some have
suggested simply that because there have been some leaks of
classified information in the past that some have deemed to
have important policy or historical value, you know, that that
simply should make the wholesale leaking of classified
information OK whenever someone feels like publishing it,
because there have been occasions when such leaks have revealed
even illegal conduct. And my response to that is that that is a
false dilemma because there are procedures in place like the
Intelligence Community Whistleblower Act that would allow those
concerns to be handled in a classified environment, all the way
up to the Hill Intelligence Committees.
Senator Leahy. Well, let's go into the other stuff, though,
when somebody does give information out to the press, the
subject of this hearing. I will put my full statement in the
record and not take my time for that. But let me ask you this,
you mention in your statement the Department's official policy
with regard to the issuance of subpoenas to members of the news
media. It requires the Attorney General to approve not only
prosecutions of members of the press, but investigative steps
aimed at the press, even in cases where the press itself is not
the subject of an investigation. So my three questions are
fairly easy.
First, did Attorney General Gonzales expressly authorize
the FBI's attempt to rummage through Mr. Anderson's papers? If
not, who did?
Second, has the FBI made any attempt to obtain the
information from alternative non-media sources, which, as you
testified, is part of the procedures?
And, third, does the important public policy against
Government intimidation or harassment of the press become
obsolete if a journalist has died?
Mr. Friedrich. Taking the first two questions, Senator,
again, as I said before, I can't comment on the Anderson matter
specifically, but what I can tell you is that the procedures
that are in place are geared toward the issuance of compulsory
process, such as a subpoena. If there is a circumstance in
which information is simply requested as a generic matter--
Senator Leahy. But if you go to an elderly widow shortly
after her husband has died and have FBI agents show up and say,
``We want these papers,'' you don't have to get any
authorization for that?
Mr. Friedrich. What I can tell you, Senator, as a general
matter is that those procedures are geared toward the issuance
of compulsory process. You will notice that in other parts of
the policy, it asks questions like, Have we attempted to obtain
cooperation? Have we attempted to obtain the information from
other means? So that would seem to suggest that the general
policy would be to try to get voluntary compliance as opposed
to issuing compulsory process.
Senator Leahy. And it is totally voluntary if an elderly
widow is faced with FBI agents flashing badges and saying, ``We
want these papers.''
Mr. Friedrich. Again, Senator, I cannot comment on the
Anderson case.
Senator Leahy. And the rest of my question I assume you are
not going to answer, so--
Mr. Friedrich. I would be happy to try to answer any
additional questions you have.
Senator Leahy. No, no. The rest of that question. It is a
three-part question. I mean, I asked--
Mr. Friedrich. Would you mind restating, sir, your third
question?
Senator Leahy. Did the FBI make any attempt to obtain the
information from alternative non-media sources? And you give
the same non-answer to that. Is that correct?
Mr. Friedrich. I believe that your third question was
something different, but I may be mistaken.
Senator Leahy. The second part, did they make any other
attempt. The third part was, does the important public policy
against Government intimidation or harassment of the press
become obsolete once a journalist dies?
Mr. Friedrich. Senator, I think that--let me separate that
question, if I could, into the issue of deceased reporters
versus deceased sources. As to the applicability of that policy
toward deceased members of the media, you know, I doubt that
that is something that has come up often. But in preparation
for this hearing and having talked to others in the Department
about it, I think that this is, frankly, an area that the
Department should take a look at.
What I can tell you in the interim is as we are taking a
look at it, if a case comes up which involves--where the
Department is considering the issuance of compulsory process to
the estate of a deceased reporter, even though these policies
might not on their face apply, I will give you an assurance on
behalf of the Department that they will be followed until we
can followup and give you an answer on that.
Senator Leahy. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Leahy, and your full
statement will be made a part of the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Before turning to Senator Feingold, I
have just a brief comment. As you have noted, there is a
certain level of concern between the Congress exercising
oversight and the responses of the Executive, and we fully
appreciate the inherent constitutional authority the President
has under Article II and the statutes which involve the Foreign
Intelligence Surveillance Act and questions whether there is
inherent power for the electronic surveillance program, and
sometimes the discussions get a little heated. Senator Leahy
and I have been able to maintain a pretty cool atmosphere. I
don't really think anybody thinks you ought to be ashamed of
yourself. You are carrying out the instructions from the
Department of Justice, and we understand that. And we will
pressure you for information to the extent we can in a
respectful manner, and we will not use you as a punching bag.
And when we question you, to the extent we can, we have also to
question the Attorney General. He is going to be back before
this Committee later this month, and we understand that you
work for him and work for the Department.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. Just a brief
statement. Thank you for holding the hearing. A free society
cannot long survive without a robust free press, and that is
why I have expressed concern before about the chilling effect
of high-profile contempt prosecutions of journalists. It is
also why I support a Federal reporter's shield law to join the
reporter's privilege that is already recognized in 49 States
plus the District of Columbia.
It is also why I am deeply worried about possible
prosecution of journalists under the Espionage Act of 1917 for
publishing classified information. As we all know by now, the
Attorney General a few weeks ago was asked about this
possibility. He responded that, ``There are some statutes on
the books which, if you read the language carefully, would seem
to indicate that that is a possibility.''
That may not sound like it, but it was a very dramatic
statement. The Espionage Act has never before been used to
prosecute journalists for publishing classified information,
and there are serious questions about whether Congress intended
it to apply to journalists. It also poses very serious First
Amendment questions that I know some of the witnesses will be
addressing and have addressed.
Mr. Chairman, of course, we must take the leaks of
classified information very seriously, but we have other tools
at our disposal. Individuals who have security clearances and
have made a commitment to the United States Government to keep
it secret should be prosecuted if they violate the law by
leaking classified information. That is where our Government's
enforcement focus has always been, and I think that is where it
should be. We can be tough on leakers without going after
journalists and creating a very significant chilling effect.
But I am grateful that you are having this hearing, Mr.
Chairman, and I appreciate the opportunity to make a brief
statement.
Chairman Specter. Thank you very much, Senator Feingold.
Mr. Friedrich, going back to your opening statement, I had
asked you about the legislation introduced by Senator Lugar,
and since modified in the Committee, about establishing a
balancing on a shield or a reporter's privilege in terms of
weighing the public policy interests of the First Amendment and
public disclosure contrasted with the national security
interest involved. And you responded to that that your
Department was opposed to that on the ground of transferring
responsibility from the executive branch to the judicial
branch. And my question really turns on the preference of
having the judiciary make a determination as opposed to the
executive branch.
In the section that you refer to, 50.10, the standard as
set forth on the Department of Justice decision to conduct an
investigation--to move into the area where there are news-
gathering interests is to ``strike the proper balance between
the public's interest in the free dissemination of ideas and
information and the public's interest in effective law
enforcement and the fair administration of justice.''
Well, in a case where you have a constitutional issue of
freedom of the press and you have the weighty considerations
involved in that kind of a balancing, isn't it the traditional
standard in this country in case of a contest to have a matter
decided by the courts instead of by the executive branch, which
has a unique interest in the prosecution?
Mr. Friedrich. Let me make two points there, Senator. First
of all, as a practical matter, once a subpoena or once
compulsory process is cut, you know, if the newspaper opposes
that, they would file a motion to quash, which would take that
matter into the courts at that point, and the courts would be
able to make whatever determination they want. So far as a
constitutional balancing, obviously the Branzburg case has held
as a constitutional matter that there is not a right of
reporters to appear not to testify under--the First Amendment
does not create a bar to that regardless of any pledge that a
reporter may have made to his or her sources.
So I think so far as the constitutional issue in terms of
the issuance of process, I believe that the Court has answered
that question. There is still an open question as to whether or
not there may be a privilege at common law, but I think as to
the constitutional question, I believe that that question has
been answered.
Chairman Specter. Well, whether there is a privilege in
common law is not determinative if Congress decides to create a
privilege. There is no newsman's privilege at common law. There
is a husband and wife privilege. There is a client-attorney
privilege, although there is some reason to doubt whether there
is anymore an attorney-client privilege with what the
Department of Justice is doing today, with the coercive
activities to get lawyers and clients to waive the attorney-
client privilege.
But moving aside from the common law privilege issue, which
is not relevant here, isn't it desirable to have the Congress
make a determination as to what the considerations are as
opposed to, as you say, have the judge do whatever he or she
wants?
Mr. Friedrich. There, Senator, again, I think that the
position of the Department--and I know you have heard testimony
as to that issue from a number of representatives from the
Department--has consistently been that that legislation in
creating a media shield is not needed, that it would slow down
the effective administration of justice, that--
Chairman Specter. Slow down the effective administration of
justice to have Congress establish standards for what the
privilege is, on a constitutional issue?
Mr. Friedrich. If that would mean creating a media shield
law under which the Department in every case in which it wanted
to issue a subpoena would have to go to court to do so before
it could be issued, yes, I think that would slow the process
down. I know even in the case of litigating privilege matters
in the grand jury context sometimes--
Chairman Specter. Well, our legislation does not require
the Department of Justice to go to court before issuing a
subpoena, and our legislation provides for a statutory
privilege and establishes legislative standards as to what the
courts should consider in determining whether the privilege is
valid.
Mr. Friedrich. Senator, I will be happy to have folks at
the Department take a closer look at that bill and submit to
you a more detailed response as to what the position of the
Department is.
Chairman Specter. Well, the red light went on when you
started your answer, but if you can get a more detailed
response from the Department of Justice, more power to you.
Thank you.
Senator Leahy?
Senator Leahy. I was kind of chuckling at that myself. If
you know how to get questions answered in DOJ, I have got
several letters that have gone unanswered for years, both when
I was Chairman and as Ranking Member of this Committee. So you
have a magic touch that nobody else seems to have, including
the Attorney General. In fact, some of these even Senator
Specter and I have asked him in the Oval Office of the
President with the Attorney General standing there, and we
still do not get the answers. But let me ask you one thing you
could answer, and it has nothing to do with this.
In January, we learned that the Justice Department issued
subpoenas to three major Internet companies. They wanted
information about what millions--I assume most of these
millions Americans are law-abiding--were searching for on the
Internet. Now we hear they have asked Microsoft, AOL, Google,
and other Internet companies to retain records on their
customers' web-browsing activities.
My question is this: What sorts of records does the
Department ask these companies to retain? For how long? What
were the companies' responses? And should we be expecting a
proposal from the Department for legislation in this area?
Mr. Friedrich. Senator, as I sit here, I don't know the
answer to that in terms of what was requested or the
circumstances under which it was requested. I don't know that I
will be able to respond, but I am happy to look into it, and if
we can give you a response, we will.
Senator Leahy. Well, will you do this: respond either way.
If you can't respond, let me know that, because then I will
know whether to ask somebody else.
Mr. Friedrich. All right.
Senator Leahy. Thank you. And as I said, and following up
on what Senator Specter said, I did not want you to be here as
a punching bag. I just felt some of the people in your
Department maybe set you up that way.
Mr. Friedrich. I will have a much happier walk back down
Pennsylvania Avenue knowing that, Senator.
[Laughter.]
Senator Leahy. It is a lovely day. I was out walking about
5:30 this morning. I hope it is still just as nice. And that is
a nice walk. We are fortunate, both you and I, to be able to
work in a city this beautiful and this historical. Thank you,
Mr. Chairman.
Chairman Specter. Senator Kyl, would you care to question?
Senator Kyl. No. Thank you.
Chairman Specter. Just another comment or two, and then we
will move to the next panel.
Mr. Friedrich, when you go back to get a response from the
Department of Justice on the shield law, the balancing which we
have discussed here, I wish you would take with you, although
we have called this to the attention of the Attorney General
and the administration at very high levels, the concerns that
some of us have about Congressional oversight. And when we talk
about shifting the decision from the executive branch to the
judicial branch, I would suggest to you that that is really the
tradition of the administration of justice.
I know that the Department of Justice believes, as the
inscription is over your building, the Department wins whenever
justice is done. And I was a prosecutor, and a prosecutor has a
quasi-judicial function to see that justice is done. But there
is still a big advocate's role--a big, big, advocate's role in
the prosecutor. So that when you have these questions, they are
really traditionally decided in our system by the courts, not
by the prosecutor, even though the prosecutor is quasi-
judicial. And when you seek an answer on the legislation as to
reporter's shield, see if you can get one on the legislation
which is pending to turn over to the Foreign Intelligence
Surveillance Court the determination of constitutionality of
the administration's surveillance program. And I will not ask
you whether you think--or maybe I will. Don't you agree that it
is the tradition in our system on these questions of
disagreement between the executive and legislative branch,
Article I and Article II officials, to have them decided by the
courts. And isn't the tradition, before there is an invasion of
privacy or a search, search and seizure, that there is the
imposition of the impartial magistrate between the citizen and
the Government?
Mr. Friedrich. I certainly agree with you, Senator, that
that is the procedure in search warrant cases and that, you
know, the courts have spoken at some length about the different
role of the executive and legislative branches and where the
appropriate power lies between. I believe in the context of
media shield legislation, certainly with respect to some of the
proposals that have been put forth--and I do not claim to have
familiarity with all of them. Some of them would seek to have
the Government essentially get prior approval from the judicial
branch before even issuing a subpoena, and that is what I was
alluding to earlier.
Chairman Specter. Well, I appreciate your answer, and we
are seeking a way to accommodate the interests of the executive
branch and maintaining the secrecy of the surveillance program.
We have the Foreign Intelligence Surveillance Court which has
an unblemished record for maintaining confidentiality and
secrecy, and they have the expertise to make the decision. And
we are trying to find some way to have an accommodation with
the Department of Justice, and this Committee has a different
function than the Intelligence Committee. Our job is to have
Congressional oversight on constitutional issues. And we are
right in the middle of a constitutional issue on the electronic
surveillance program, and we are right in the middle of a
constitutional issue on freedom of speech and reporter's shield
and the potential for prosecution under Sections 793 and 798.
But we appreciate your categorical answer that the
Department of Justice thinks it has the authority to prosecute
criminally because I believe that is an invitation to the
Congress to legislate on the subject, because we do decide
where the criminal prosecutions will be brought. That is
clearly our authority, and we are now on notice as to what we
need to consider.
Mr. Friedrich. If I may, Senator?
Chairman Specter. Sure.
Mr. Friedrich. Simply in terms of a categorical answer,
again, I just want to clarify that I am speaking, as I believe
the Attorney General was speaking, as to the potential reach of
the law. I just want to again emphasize that, you know, the
Attorney General has also said that our primary focus is on
prosecuting the leakers as opposed to other options, and that
our primary--that our much preferred path would be to attempt
to work with reporters voluntarily to convince them not to
publish classified information which could lead to the
compromise of our most sensitive technologies, harm our young
men and women who serve in the service of this country, and
cause damage.
Chairman Specter. Well, I appreciate your addendum, and I
started off by saying that the national security interests are
enormous--enormous--and they have to be balanced with the
constitutional rights. But where you have a criminal statute
where you can send people to jail and have a chilling effect on
newspapers, it is really the Congressional role to define it
and to establish standards. And I think clearly the ball is in
our court. You have some balls in your court, and we have some
in our court.
I have just been notified that we have a vote on, so we
will go vote, and we will be back promptly to take up the
second panel. Thank you all.
[Recess 10:28 a.m. to 10:54 a.m.]
Chairman Specter. Would you gentlemen stand for the
administration of the oath? Do each of you solemnly swear that
the evidence you give before this Committee will be the truth,
the whole truth, and nothing but the truth, so help you God?
Mr. Anderson. I do.
Mr. Smolla. I do.
Mr. Schoenfeld. I do.
Mr. Feldstein. I do.
Chairman Specter. May the record who that each has answered
in the affirmative. Thank you very much for coming in,
gentlemen. We turn to our first witness, who is Mr. Kevin
Anderson, a partner in the law firm of Fabian and Clendenin,
Salt Lake City, Utah; bachelor's degree from the University of
Utah; law degree from Georgetown. He acted as an assistant to
his journalist father, Mr. Jack Anderson, in the 1970s. Thank
you very much for coming in today, Mr. Anderson, and we look
forward to your testimony.
STATEMENT OF KEVIN N. ANDERSON, FABIAN AND CLENDENIN, SALT LAKE
CITY, UTAH
Mr. Anderson. Thank you, Chairman Specter and members of
the Committee. I appreciate this opportunity. I would like to
acknowledge in the room with us today is my mother, and there
are six of the nine members of my family also present.
Chairman Specter. All present? Would they mind standing so
we can recognize them and acknowledge them.
Now, you say, Mr. Anderson, that your mother is right
behind you, and the others who stood are your siblings?
Mr. Anderson. Yes, that is correct.
Chairman Specter. And six of the nine?
Mr. Anderson. Yes, including me, are here.
Chairman Specter. Well, that is a wonderful family.
Congratulations to you, Mrs. Anderson, and all the Andersons.
And reset the clock to 5 minutes.
Mr. Anderson. Thank you, Senator.
I will address the events surrounding the FBI's request to
access my father's papers and my family's view of how he would
have reacted to the Government's investigation of journalists
who publish classified information.
About 6 weeks after my father's death, FBI Agent Leslie
Martell called my mother to gain access to Dad's papers. As the
attorney in the family, I called her and was told that the FBI
believed that there were classified documents among Dad's
papers that would help the Government in a criminal
investigation. I was left with the impression that the FBI's
probe concerned terrorism. I was assured that no member of the
family was the target of the investigation.
As several members of this Committee know, Dad often
cooperated with criminal investigations where it would not
violate the confidentiality of his sources. I told Agent
Martell that she could meet with Mom.
Afterwards, Mom was excited to tell me that she thought
Agent Martell might be related through her family roots in West
Virginia, where Mom was born and raised. She found this more
interesting than what the FBI wanted. All she remembered was
that it involved something about Dad's papers from the 1970s.
My Mom cooperated with the investigation. She told the FBI
agents where the boxes were located. She put them in touch with
Dr. Feldstein and Dr. Chambless, both of whom had reviewed some
of the boxes. Dr. Chambless, with the blessing of the family,
even sent a 12-page inventory of 80 of the boxes he had
reviewed to the FBI.
Several weeks later, the FBI asked me to confirm that the
family and not the Gelman Library at George Washington
University owned the papers, and I confirmed that the family
did own them. And because of the family's concern, I told the
agent at that time that the family would need more information
about what documents the FBI wanted.
Next I received a call from Dr. Feldstein at GW saying that
the FBI claimed to have a consent that Mom had signed. I
immediately called Agent Martell, upset that as the family
attorney I had not been told about the consent and had not even
seen it. To this day, I have not seen the consent. She was very
apologetic and arranged a conference call. During that call,
two FBI agents and one of the U.S. Attorneys General involved
in the criminal case told me that the request for Dad's papers
was in connection with the AIPAC investigation.
The FBI said that classified materials may have been passed
between Dad's office and the defendants in that case and
perhaps even between Dad's office and a member of the Foreign
Intelligence Service in the early 1980s. They wanted to check
for fingerprints on some of the documents. I told them that I
thought that the presence of those types of documents in Dad's
papers was extremely unlikely. I also expressed my concern to
them that the AIPAC prosecution could be viewed as a step
toward prosecuting journalists. I felt Dad would have
vigorously opposed such an effort. The FBI and Department of
Justice representatives assured me that they were not after
Dad's sources, family members, or George Washington University
for possession of classified documents.
We also discussed hypothetically the scope of an FBI review
of Dad's papers, assuming that the family would decide to
cooperate. The agents made it clear that they intended to
review all of his papers, regardless of their relevance to the
AIPAC case. In addition, they repeatedly stated that they would
be ``duty bound'' to remove all possible classified documents,
either permanently or redact them and return them. I felt this
would destroy the political, historic, and cultural value of
Dad's papers.
I made several suggestions to limit the scope. These were
rejected, including my offer to personally review the papers to
locate anything related to the AIPAC case. I was told that
because I did not have a security clearance, I could not review
my father's papers.
In early April, at a meeting with FBI's former First
Amendment attorney, Michael Sullivan, and an attorney for GW, I
came to the conclusion that the AIPAC investigation was nothing
but a fishing expedition, at best, and at worst, a pretext for
the FBI to learn what it could not discover about Dad's sources
when he was alive. The family met and instructed Mr. Sullivan
to formally reject the FBI's request. A copy of that letter has
been provided to the Committee.
The family feels that the FBI's review of Dad's papers and
removal of documents would be contrary to his wishes. He taught
us that the press' constitutional role was to keep an eye on
those who govern us, not to be a bulldog or a lapdog, but a
watchdog. He used to say that our Founding Fathers understood
that Government by its nature tends to oppress. There is
nothing in the Constitution about the freedom to practice law
or to practice medicine, but there is something in the
Constitution about the freedom of the press. Dad was fond of
quoting Thomas Jefferson, who was vilified by the press more
than any recent politician. ``[W]ere it left to me to decide
whether we should have a government without newspapers, or
newspapers without government, I should not hesitate a moment
to prefer the latter,'' Jefferson wrote.
For more than a generation, Dad and his mentor, Drew
Pearson, were among the most significant journalistic checks in
the Nation's capital. At a time when Members of Congress and
even the White House were afraid of J. Edgar Hoover, Dad had
his staff openly rifle through Hoover's trash to give the
former FBI Director a taste of his own medicine. Dad often said
that documents that came across his desk were classified as
``national security'' secrets, but he characterized them as
really ``political security'' secrets. They showed the misdeeds
and manipulations of Government employees who had abused the
public trust and then tried to sweep the evidence under the
secrecy stamp. Such information should not be hidden from the
people.
Ours is a Government of the people. Dad taught us that the
people are the sovereigns. Those who work in Government are our
servants. We, the people, have the right to know what our
servants are doing when they act in our name. The secrecy stamp
must not shield the actions of our officials from scrutiny. The
press, as the watchdog, must be free to criticize and condemn,
to expose and oppose the Government.
Finally, concerning the reporter's shield law being
considered by this committee, I believe that Dad would have
insisted that the First Amendment provides the best shield. I
know that my father was concerned with protecting his sources.
This concern is real. After the recent publicity, I have been
contacted by several sources who still fear that their
identification would result in political, financial, and even
physical harm. The FBI's efforts have underscored the need for
protection of journalists, their families, and in this case--
excuse me, journalists, their sources, and in this case, even
their families.
Again, thank you for this opportunity.
[The prepared statement of Mr. Anderson appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Anderson. We
turn now to Dean Rodney Smolla, dean of the University of
Richmond School of Law; bachelor's degree from Yale, a law
degree from Duke; has taught at many law schools--College of
William and Mary, Duke, University of Denver, University of
Arkansas, University of Illinois, at DePaul College of Law.
Quite a record, and now he is the dean at the University of
Richmond School of Law. Thank you very much for coming in, and
the floor is yours, Dean Smolla.
STATEMENT OF RODNEY A. SMOLLA, DEAN, UNIVERSITY OF RICHMOND
SCHOOL OF LAW, RICHMOND, VIRGINIA
Mr. Smolla. Thank you, Mr. Chairman. I am going to go right
to the heart of the constitutional and public policy issues
that you and others have been addressing throughout the
hearing. As you have recognized and your fellow Senators have
recognized, the Constitution and the First Amendment
specifically absolutely have to be a vital part of this
discussion. We start with the First Amendment baseline, which
is a long series of cases, a venerable series of cases, in
which the Supreme Court of the United States has made it clear
that all citizens, including reporters, have a presumptive
First Amendment right to publish truthful information that is
lawfully obtained. That is sometimes described as the Daily
Mail line of cases.
It is important to remember that in almost every one of
those cases, somebody did something wrong to give the material
to the reporter--there was a leak, the material was classified,
there was a restraining order on the material. Nevertheless,
the reporter obtained the material and the Supreme Court
sustained the First Amendment right of that journalist to
publish that material.
Now, that line of cases puts great pressure on that phrase
``lawfully obtained,'' and to this day, the Supreme Court has
never given that phrase complete clarity. A narrow concept of
it could mean that the reporter does not in some affirmative
way engage in lawbreaking in obtaining the material, the
reporter does not hack into the computer file or break into
somebody's office. But it could also have a broader meaning. It
could conceivably mean that if the reporter passively receives
information that the reporter knows someone else is breaking
the law in handing over to that reporter, that the reporter is
in some sense tainted by the transaction and that the material
is not lawfully obtained.
It is clear that the Supreme Court itself does not believe
this is a First Amendment question that is completely settled.
For example, in one of the famous cases in this line, Florida
Star v. B.J.F., the Court said--I will quote it directly: ``The
Daily Mail principle does not settle the issue whether, in
cases where information has been acquired unlawfully by a
newspaper or by a source, government may ever punish not only
the unlawful acquisition, but the ensuing publication as
well.''
In one of the few cases in which the Court has gotten
deeply into this, a recent case, Bartnicki v. Vopper, the
Supreme Court dealt with illegally intercepted cell phone
conversations. None of us wants to hear our cell phone
conversations broadcast on the radio or printed in a newspaper.
The Supreme Court in that case held that the First Amendment
protected the journalists who published and broadcast that
information, even though plainly someone broke the law in
intercepting it.
Now, Bartnicki is a somewhat confusing and ambivalent
ruling because two Justices who were necessarily the majority
in that case, Justice Breyer and Justice O'Connor, took a sort
of intermediate position. Justice Breyer, who wrote that
concurring opinion, said, ``In this case, I believe the First
Amendment protects what the reporters did, but it is important
to me that what was happening is that the material that was
being broadcast revealed wrongdoing, potential violence,
potential lawbreakers by the speakers. And in that posture,''
he said, ``I think the First Amendment trumps,'' but he left
open the possibility that this was not an absolute principle
and that you could have a narrowly crafted law that would
satisfy the First Amendment standards.
Many of the other cases that are out there, including the
Pentagon Papers case, which you have alluded to, Senator, do
not give us a clear answer. We know in the Pentagon Papers case
that the Supreme Court said in the context of national security
that even the doctrine of prior restraint was not absolute,
that there could come a situation where you would allow a prior
restraint under the First Amendment. We know the Court left
unresolved one of the questions you were questioning the
Justice Department representative on, which is whether the
Espionage Acts do or don't allow for prosecution.
But one critical thing that is central to Pentagon Papers,
that is part of the holding, is that it was clearly critical to
a majority of the Court that the material at issue did not
compromise any ongoing live operations with regard to the
prosecution of the Vietnam War. It was a matter of great public
interest. It unveiled wrongdoing in some respects. But it was
history, and it had passed into the public domain, it seemed
the Court was saying, which shows us that it must be the rule
that just because something is classified does not mean that
there is carte blanche for the Government to go after a
journalist who traffics in it.
It would overstate matters to say that the First Amendment
absolutely bars making the receipt of information or the
downstream publishing of the information unconstitutional. We
know that cannot be the case. The Court has never said that in
the Daily Mail line of cases, and we have one prominent example
where the Court has held to the contrary, in the obscenity
area, where the Supreme Court held originally in Stanley v.
Georgia that you could not make the mere possession of obscene
material--which was illegal. You could not make the mere
possession of the material a crime because that was tantamount
to making a thought crime. The Court said that rule did not
apply later in the context of child pornography, where you
could make the mere possession of the material a form of
contraband. So we do know that there are times when we have
interests of sufficiently high order to justify a narrowly
drawn statute.
The very last point I will make, Senator, is that although
I think conceivably a narrowly drawn law could be crafted by
Congress that would protect national security secrets with
sufficient safeguards and tailoring and so on to not violate
existing First Amendment doctrine, that does not mean it is a
good idea. It does not mean it is wise public policy. And it
certainly does not mean that we ought to interpret existing
statutes as saying that, although some of the sections of
existing law by their bland language would appear to encompass
the mere possession or publishing of classified information.
As has already been brought out powerfully in this hearing,
that is not our tradition. There is very serious doubt that
this Congress intended for that to be how those laws would be
used, and we have not in the history of this Republic used them
that way. And in light of that cultural experience, that
societal understanding, and the serious First Amendment
tensions that are created if we were to go there, the better
interpretation of existing law is that it is too dangerous to
interpret those statutes as if they empower the Government to
prosecute journalists. And it would be bad public policy, in my
view, Senator, if Congress were to attempt to clarify the law
in a way that would empower the Government to go after
journalists. Thank you.
[The prepared statement of Mr. Smolla appears as a
submission for the record.]
Chairman Specter. We now turn to Dr. Gabriel Schoenfeld,
Commentary Magazine senior editor, who has written on a wide
variety of subjects--the Vietnam War, terrorism, nuclear
proliferation, the cold war, anti-Semitism; published in the
New York Times, the Wall Street Journal, the Washington Post,
New Republic; appeared on many TV shows; a Ph.D. from Harvard's
governmental department in 1989.
Thank you very much for joining us, Dr. Schoenfeld, and we
look forward to your testimony.
STATMENT OF GABRIEL SCHOENFELD, SENIOR EDITOR, COMMENTARY, NEW
YORK, NEW YORK
Mr. Schoenfeld. Thank you very much, Mr. Chairman. It is an
honor to be invited here to testify today.
As a journalist, I know firsthand the vital role played by
a free press in our great country. Just this past week, two
members of the media were killed and a third was critically
injured while reporting on the war in Iraq. One cannot be
indifferent to the risks that journalists are taking on a daily
basis to bring us the information on which we depend to keep
our society free and our debate open and well informed.
But the tragedy that befell Kimberly Dozier and her crew
also served to underscore the fact that our country is now at
war. Thousands of our young men and women are in harm's way in
distant locations around the world. And on September 11, 2001,
as a result of a massive intelligence failure, we found that
our own homeland was also in harm's way. Three thousand
Americans paid for that intelligence failure with their lives.
Obviously, many different factors contributed to that
intelligence lapse. One of them is the subject of today's
hearing, namely, leaks of classified information. The Jack
Anderson archive affair is part of an issue with broad and
urgent ramifications.
The 9/11 Commission report stated that in 1998 a leak to
the press led al Qaeda's senior leadership to stop using a
particular communications channel, which made it much more
difficult for our National Security Agency to intercept Osama
bin Laden's conversations. Our Government's ability to gain
insight into the plans of a deadly adversary were compromised
by the actions of a leaker or leakers inside of Government and
by journalists willing to publish what they had learned from
those leakers, no matter what the cost to our National
security.
The damage caused by that leak was not widely recognized at
the time, and no action was taken against the leakers or the
newspaper which first published the secret information. But the
episode highlights the crucial importance of communications
intelligence in the war on terrorism and the special
vulnerability of this form of intelligence to disclosure.
It was precisely because of that vulnerability that in 1950
Congress added a very clear provision to the U.S. Criminal Code
dealing specifically with communications intelligence. What is
now known as Section 798 of Title 18 made it a crime to publish
classified information pertaining to communications
intelligence. I should add that that Act was passed in the
aftermath of a press leak during World War II, in the Battle of
Midway, when the Chicago Tribune had disclosed that our
intelligence agencies had succeeded in breaking Japanese codes,
which was a very serious leak that threatened the lives of
thousands of American soldiers and threatened to prolong the
war.
Now, Section 798 is free from all the ambiguities and
constitutional problems that beset the 1917 Espionage Act. It
was passed virtually without debate by Congress and won the
approval at the time it was passed of, among other
organizations, the American Society of Newspaper Editors.
In the years since its passage, Section 798 has never been
employed for the prosecution of a journalist. It is a law that
was designed for special circumstances that are very dangerous
but also very rare. Unfortunately, those special and rare
circumstances appear to be upon us today.
On September 11th, our country suffered a second and more
terrible Pearl Harbor. Overnight, we were thrust into a new
kind of war, a war in which intelligence is the most important
front. It is also a war in which, if our intelligence fails us,
we as an open society are uniquely vulnerable. If we are to
defend ourselves successfully in this war and not fall victim
to a third Pearl Harbor, perhaps a nuclear Pearl Harbor, it is
imperative that our Government and our intelligence agencies
preserve the ability to conduct counterterrorist operations in
secret.
I do not know what classified documents, if any, might be
contained in Jack Anderson's archive. But from the press
reports I have seen and from the testimony here today, they do
not appear to be of recent vintage, and some of them might go
back as far as the Korean War. Now, surely, if the FBI can
demonstrate that there are documents in that archive the
disclosure of which will damage national security or bear on
criminal behavior, the FBI and the Justice Department have the
statutory right to obtain a warrant to search and seize those
documents. It probably would have enjoyed that right when
Anderson was alive, and it certainly has them now that he is
dead. Whether it should exercise that right today in the middle
of the war on terrorism is another matter entirely. Unless
facts come to light that alter our understanding of what is in
that archive, the entire episode appears to be a misallocation
of investigative resources. There are other leaks that have
been far more damaging which the FBI is not pursuing with any
seriousness at all, as best we can tell.
Beginning last December 16th, the New York Times published
a series of articles reporting that shortly after September 11,
2001, President Bush had authorized the National Security
Agency to intercept electronic communications between al Qaeda
operatives and individuals inside the United States and
providing details about how those interceptions were being
conducted.
Now, the 9/11 Commission had identified the gap between our
domestic and foreign intelligence-gathering capabilities as one
of the primary weaknesses in protecting our country against
terrorism. The NSA terrorist surveillance program aimed to
cover that gap. The program, by the Times' own account of it,
was one of our country's most closely guarded secrets in the
war on terrorism.
I am not privy to the workings of the program, but a broad
range of Government officials have said that the program was
vital to our security and that the New York Times disclosure
inflicted critical damage on a crucial counterterrorism
initiative.
Compounding the direct damage caused by the compromise of
the NSA program is harm of a more general sort. In waging the
war on terrorism, the U.S. depends heavily on cooperation with
the intelligence agencies of allied countries. When our own
intelligence services, including the NSA, the most secretive
branch of all, demonstrate that they are unable to keep shared
information under wraps, international cooperation dries up.
According to Porter Goss, his intelligence agency
counterparts in other countries informed him that our
Government's inability to keep secrets had led some of them to
reconsider their participation in some of our country's most
important counterterrorism activities.
If Americans are still wondering why our intelligence has
been as defective as it has been, why it has been leading us
from disaster to disaster, one of the reasons is unquestionably
the hemorrhaging of classified information into the press.
During the run-up to the Gulf War, the United States was
urgently attempting to assess the state of play of Saddam
Hussein's program to acquire weapons of mass destruction. One
of the key sources of information suggesting an ambitious WMD
program was under way was an Iraqi defector known by the code
name of Curveball, who was talking to German intelligence. The
U.S. remained in the dark about Curveball's true identity, yet
if we had known who he was, we would have also known that he
was a serial fabricator.
But the reason why German intelligence would not tell us
who Curveball was, as we learned from the Silberman-Robb WMD
Commission report, that they refused ``to share crucial
information with the United States because of fear of leaks.''
In other words, some of the blame for our mistaken intelligence
about Iraq's WMD program rests with the leakers and with those
in the media who rush to publish the leaks.
Now, President Bush has called the disclosure of the NSA
program, the terrorist surveillance program, by the Times a
``shameful act.'' I have argued in the pages of Commentary that
the decision to publish that story was also a crime, a
violation of Section 798.
Now, today Congress sets the laws by which we live in our
democracy and oversees the way that they are carried out. If
Congress, representing the American people, comes to believe
that the executive branch is creating too many secrets or
classifying things that should not be classified, it has ample
powers to set things right by funding faster and better
declassification and/or changing the declassification rules.
But if, by contrast, a newspaper like the Times, a private
institution, representing no one but itself, acts recklessly by
publishing vital Government secrets in the middle of a perilous
war, it should be prepared to accept the consequences as they
have been set in law by the American people and its elected
representatives. The First Amendment is not a suicide pact.
Thank you very much for your attention, Mr. Chairman.
[The prepared statement of Mr. Schoenfeld appears as a
submission for the record.]
Chairman Specter. Thank you very much, Dr. Schoenfeld.
Our final witness on this panel is Mr. Mark Feldstein,
Director of Journalism at George Washington University,
Associate Professor of Media and Public Affairs at George
Washington University; bachelor's degree from Harvard, a Ph.D.
from University of North Carolina. In the 1970s he was an
intern for columnist Jack Anderson. For nearly 20 years, he has
been an on-air correspondent for virtually every news station--
CNN, ABC, NBC--and has a record as an investigative reporter,
as his resume says, beaten up in the United States, detained
and escorted by Government authorities in Egypt, and kicked out
of Haiti.
Quite a record, Mr. Feldstein.
His book, ``Poisoning the Press: Richard Nixon, Jack
Anderson, and the Rise of Washington's Scandal Culture,'' will
be published next year.
Thank you for joining us today, Mr. Feldstein, and the
floor is yours.
STATEMENT OF MARK FELDSTEIN, DIRECTOR OF JOURNALISM PROGRAM,
AND ASSOCIATE PROFESSOR OF MEDIA AND PUBLIC AFFAIRS, SCHOOL OF
MEDIA AND PUBLIC AFFAIRS, GEORGE WASHINGTON UNIVERSITY,
WASHINGTON, D.C.
Mr. Feldstein. Thank you, Senator. Let me just summarize my
testimony, if I might, and ask that my full statement, with
some news articles and editorials about the case, be entered
into the record.
Chairman Specter. Without objection, they will all be made
a part of the record.
Mr. Feldstein. Thank you.
On March 3rd, two FBI agents showed up at my home. They
flashed their badges and requested 25-year-old documents I had
been going through for the book I am writing about Jack
Anderson. The agents told me they were investigating violations
of the Espionage Act going back to the early 1980s, even though
they admitted the statute of limitations had expired. It seems
the Justice Department wants to prosecute people who might have
leaked secrets to a reporter decades ago, a reporter who is now
dead. The agents tried to get me to say we have classified
documents in our archives, even though I told them I do not
know of any. They seemed to view reporters' notes as the first
stop in their probe rather than the last step after all others
failed--the standard they are supposed to use under Justice
Department guidelines.
Now, of course, the FBI is filled with thousands of brave
men and women who do their jobs superbly and risk their lives
for their country. But this case is troubling because
whistleblowing sources, the kind Senator Grassley and other
members of this Committee have championed, may be scared off if
the Government starts rooting through reporters' notes, even
past the grave.
Last month, FBI Director Mueller promised this Committee he
would find out what happened here, and I think the FBI still
owes the Committee an answer. Perhaps the Justice Department's
Inspector General should investigate.
Unfortunately, this seems to be part of a larger effort to
use national security to crack down on the public's right to
know. We are even hearing proposals to prosecute journalists
under the Espionage Act, a law passed during the hysteria of
World War I and strengthened when Joe McCarthy began his witch
hunt. Prosecuting the press for espionage reeks of McCarthyite
madness, the kind of tactics used in dictatorships, not
democracies.
Espionage? Reporters are not spies. They are patriotic.
Every year, dozens of them give their lives trying to dig out
the truth for the people. They are not perfect. Journalists
make mistakes.
They can be arrogant. They give too much attention to
trivia and sensation. But history shows that genuine harm to
national security caused by reporters has been minuscule to
nonexistent. Far more damage to national security has been
caused by Government secrecy and deceit than by media
disclosures of classified information. If anything, the problem
is not that the press is too aggressive in national security
reporting. It is that it is too timid.
Now, administrations often exaggerate the damage from
reporting, invoking national security, when the real concern is
political embarrassment. The fact is that leaks increase when
Government abuses increase because whistleblowers turn to the
press to get the truth out. This is healthy, a self-correcting
mechanism in a democracy, and it is as old as the Republic
itself.
In 1796, a newspaper published verbatim excerpts of what
George Washington told his Cabinet about secret negotiations
with Britain. It created an uproar in international relations.
Who leaked this National security secret? Thomas Jefferson, the
Secretary of State then, was the No. 1 suspect.
If you start prosecuting reporters for revealing secrets,
journalists will stop telling the public about important
national security misconduct. Either that, or the jails will
fill up with reporters.
Neither option is good. Merely threatening to prosecute the
media by twisting the Espionage Act or some other law sends a
chilling message. In the words of one journalist, the
Government has ``already won...a victory that will bear fruit
every day, whenever any reporter holds back for fear of getting
into trouble, whenever a source fears to come forward lest he
be exposed, whenever an editor `goes easy' for fear of
government retaliation...whenever a citizen anywhere can be
influenced to think of reporters as lawbreakers, the kind of
people who have to be arrested.''
The journalist who said those words was Jack Anderson,
writing about the Nixon administration abuses during Watergate.
Unfortunately, his words appear to be equally relevant today.
Thank you.
[The prepared statement of Mr. Feldstein appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Feldstein.
We received a letter yesterday from Mr. Max Frankel, who
submitted an affidavit 35 years ago in the Pentagon Papers
case, and without objection, we will make part of the record
Mr. Frankel's affidavit, and also his letter to the Committee
dated yesterday, June 5th. And I will read one paragraph from
the letter from Mr. Frankel.
``A review of the affidavit shows that, while all the names
have changed, the way Washington works has not. Neither have
the principles that should govern the relationship between
Government and the press. Leaks of secrets and of classified
information have been and continue to be routine. For a wide
variety of reasons, they are essential to what I call the
`cooperative, competitive, antagonistic, and arcane
relationship' between Washington reporters and American
officials. The press plays a vital role in educating the public
through the use of so-called secret information, much of it
intentionally disclosed by honorable Government servants. They
may be floating trial balloons, sending messages to foreign
governments, waging internecine battles against other
governmental departments, illuminating or attacking
governmental policies. Their motives are as numerous as their
disclosures.''
Mr. Anderson, do you know if Federal authorities ever made
a request to your father for any information or documents
during his lifetime?
Mr. Anderson. During the span of his lifetime, I am sure
that there were some requests. I was asked by someone in the
media who said that an FBI representative had told them that
about a year before he died, they had made a request. I don't
know whether that is true, but in following up on that--my
father was pretty much bedridden during that year, 24-hour-a-
day care. I checked with the nurses and my sister who was
tending him and my Mom, and none of them was familiar with any
request.
Chairman Specter. So you know of no request?
Mr. Anderson. That is correct. I do not.
Chairman Specter. And, similarly, you know of no disclosure
by your father of any of his documents.
Mr. Anderson. That is correct. He would not have and did
not, to my knowledge.
Chairman Specter. And you testified that the FBI told you
you could not review your father's papers?
Mr. Anderson. That is what they said on several occasions,
actually.
Chairman Specter. Has the FBI gone to any compulsory
process, subpoena, to obtain your father's papers?
Mr. Anderson. Not at this point. I should add that they
have, you know, repeatedly asked various people questions and
have the necessary information to do that.
Chairman Specter. Have you--and you do not have to answer
this question. You do not have to answer any of these
questions. You are not under subpoena. And if you were under
subpoena, you would not necessarily have to answer the
questions either if you claimed the privilege. But I will ask
you: Have you reviewed any of your father's papers in the face
of the FBI statement to you that you are not permitted to,
authorized to?
Mr. Anderson. I have not in the recent past. I have not
seen really any of the papers since they were--some of them
were boxed up 20 years ago.
Chairman Specter. Aren't you interested in what they say?
Mr. Anderson. A little bit, but to be frank with you, I
have been too busy to get out there and do that. I would
completely disregard the FBI's direction to me and review them
at will, though.
Chairman Specter. And how do you describe the volume? In
boxes, you said?
Mr. Anderson. There are 187 boxes.
Chairman Specter. How big are the boxes?
Mr. Anderson. They are what I call banker's boxes, you
know, just a typical document storage box. I couldn't tell you
how many thousands of papers. And then, in addition, there
are--
Chairman Specter. A banker's box, about 2 feet, 2\1/2\
feet, by about a foot and a half?
Mr. Anderson. Yes, that would be correct. And then there
are 20 file drawers of small 3-x-5 cards that my Dad used to
keep to index the columns that he wrote.
Chairman Specter. Do you have any idea why the FBI, after
making a request, has not pursued compulsory process, a
subpoena?
Mr. Anderson. I understand that they would have to go to
the Department of Justice, and my guess is that the Department
of Justice perhaps has a different view of the importance of
the documents that might be in there.
Chairman Specter. Now, you say that your father and Drew
Pearson went through Director J. Edgar Hoover's trash?
Mr. Anderson. Yes, that is correct. He did a series of
articles about what they found in there, and, in fact, I think
an ABC News crew videotaped one of Dad's reporters going
through the trash.
Chairman Specter. Do you know if--well, I will ask you the
question. I think the answer is obvious. Do you know whether
any of these many boxes contain information about Director
Hoover's trash?
Mr. Anderson. Well, I suspect they do because they have the
information--they have copies of the columns that he wrote and
some of Dad's notes related to that.
Chairman Specter. Mr. Feldstein, Professor Feldstein, what,
again, did the FBI ask you for with respect to Mr. Anderson's
files, Mr. Jack Anderson's files?
Mr. Feldstein. Well, they basically wanted to go through
all of them.
Chairman Specter. And what did you have?
Mr. Feldstein. Well, my university has nearly 200 boxes
that the Anderson family donated to the collection, to our
collection.
Chairman Specter. Are those papers of the university
available for public inspection?
Mr. Feldstein. No, sir, not yet. We, as all archives do,
first get them and then try to raise the money, because it is
expensive to catalogue them--it usually takes months or years--
segregate out anything the family or the donor wanted
segregated, love letters, source notes, what have you, and then
we make it--put it on display for the public.
Chairman Specter. And is it the intention of your
university 1 day to make those records available to the public
after being screened as you describe?
Mr. Feldstein. Yes, sir.
Chairman Specter. What do you think would be the
consequence on other reporters if you were to give the FBI
access to Mr. Jack Anderson's files that you have in possession
of your university? Mr. Feldstein. Well, I think it would be
troubling for both journalists and academics. For journalists,
the concern would be that their source notes, confidential
sources, would be revealed to law enforcement authorities and
that that would produce a chilling effect, making other
whistleblowers reluctant to come forward out of fear that their
identities would later become known. For academics, historians
are always very concerned about trying to keep historical
archives in order and not have them rifled through, because
often the order matters, and also may discourage people from
donating their papers in the future, not just at our university
but everywhere, if--
Chairman Specter. You think it would have a chilling
effect?
Mr. Feldstein. Yes, sir.
Chairman Specter. A serious chilling effect? Mr. Feldstein.
Well, how serious depends on, I suppose, how bad the rifling is
that takes place and how much is confiscated. One of the
problems is the FBI agents did make clear that they would be
duty bound to pull out stuff that they felt should not be in
there.
Chairman Specter. You and your university are preserving
these papers so that if the FBI should ever assert a compulsory
process and have that upheld by the courts, they would be
available to the FBI?
Mr. Feldstein. Well, I can't speak for the university or
for the Anderson family, but, yes, we are preserving it and,
you know, we certainly believe in abiding by the law. And we
are all good citizens, too, and we don't want anything to
jeopardize national security. You know, my own concern here is,
frankly, I am a little skeptical that anything that old and
that long ago really is about national security.
Chairman Specter. Mr. Anderson, a similar question to you.
If the FBI ultimately prevails with a subpoena compulsory
process, will the records be available for them to see if they
are upheld in court?
Mr. Anderson. Not at this point in time. The family has met
and decided that we would not abide by a subpoena if one were
issued by the FBI, and we would give that instruction to the
George Washington University.
Chairman Specter. Well, if the subpoena was upheld by the
highest court in the country, would you risk a contempt
citation rather than make the records available?
Mr. Anderson. I would, and I have spoken with my mother,
and she would as well.
Chairman Specter. Well, we will not ask you for a final
judgment on that today. We are far from that. But it is not an
irrelevant question.
Well, Dr. Schoenfeld and Professor Smolla, you pose about
as sharp a conflict as you can find on this issue. Dr.
Schoenfeld wants to prosecute the New York Times and Mr. Risen,
and Professor Smolla does not even want us to examine the
question as to what standards would be appropriate for
prosecution under 798, because that would be an invitation.
You have it on the books. You have heard, Dean Smolla, the
testimony of a representative of the Department of Justice that
the Department concludes as a legal matter that the Department
has the authority to prosecute. Do you think that there are no
circumstances, there is no conceivable circumstance under which
a prosecution by the Federal Government of a newspaper or a
newspaper reporter would be justified?
Mr. Smolla. Well, Senator, let me divide it into the
statutory question and the First Amendment question. I think it
is very implausible that Section 798 was thought of by Congress
when it passed that law in 1950 as overturning decades of
cultural understanding that we had before this law was passed
and that we have observed since. And it is implausible that
Congress had in mind upsetting the traditional First Amendment
balance that has existed.
You would have to believe that Members of Congress imagined
that there could be, for example, an illegal or
unconstitutional communications interception program. It is
conceivable that the executive branch could illegally be
intercepting people's communications and that Congress meant to
say that all the executive branch needs to do is say the
existence of the program is classified, the very fact we are
doing it is a secret; and if that is revealed and the reporter
finds out about it, the reporter can be criminally prosecuted
for exposing that.
That is a very improbable understanding of what Congress
thought it was doing when it passed this law, and--
Chairman Specter. But is Dr. Schoenfeld wrong that the
statute was passed as a reaction to the disclosure by a
newspaper that the Japanese code had been broken?
Mr. Smolla. Well, you know, that episode took place 8 years
before. As Dr. Schoenfeld has conceded, there is very little
legislative history surrounding the passage of the Act. And
there may be a qualitative difference between the kind of
communication that reveals, in fact, how we are intercepting
material, that reveals that a code has been broken, that kind
of hard national security data where you can instantly see this
would damage the national security of the United States if this
is released, and the kind of leaks that are now being talked
about, which are leaks about massive programs that don't reveal
any technical secrets--the New York Times didn't explain
exactly how these things were intercepted--don't even reveal
the content of it. All they do is tell you that it is done
without a warrant.
Chairman Specter. Well, yes, but are you saying that there
is no conceivable circumstance which would justify prosecuting
a newspaper or a reporter?
Mr. Smolla. No, I am not, and I am conceding that the First
Amendment standard itself contemplates that there could be
national security interests of the highest order and that a
narrowly tailored statute in which the Congressional intent was
clear and in which defense safeguards are built in, safeguards
that require that there be proof that some ongoing or live
operation--
Chairman Specter. Have you had a chance to review the
Lugar-Specter bill?
Mr. Smolla. I think it is generally going in the right
direction, Senator. We certainly should have a shield law.
Chairman Specter. Never mind going in the right direction.
[Laughter.]
Chairman Specter. Would you support it? Mr. Smolla. I think
that the critical thing would be--and you alluded to this, Mr.
Chairman--how broad or how narrow the national security
exception is. But I absolutely support the idea that that
should be the kind of thing placed in the hands of the neutral
magistrate.
Chairman Specter. Well, since you haven't said yes, would
you give us suggestions as to how to--
Mr. Smolla. I would be happy to do that. I would be happy
to do that, Senator, but I think--
Chairman Specter. How to perfect it so that you would
support it?
Mr. Smolla. I would be happy to be invited, in fact, to do
that, Senator.
Chairman Specter. Dr. Schoenfeld, what is your thinking or
the basis for your conclusion that Congressional intent on 798
was to cover a situation like the publication by the New York
Times and Mr. Risen of the surveillance program?
Mr. Schoenfeld. I can't imagine a set of circumstances that
more closely fit the intention of the Congress that passed that
Act. Just looking at the plain language of the law, it is
unambiguous. The provision says, ``Disclosure of classified
information. (a) Whoever knowingly and willfully communicates,
furnishes, transmits, or otherwise makes available to any
unauthorized person, or publishes, or uses in any manner
prejudicial to the safety or interests of the United States or
for the benefit of any foreign government to the detriment of
the United States any classified information (3) concerning the
communication...activities of the United States...''
Chairman Specter. You testified that it was your thinking
that the disclosure of the breaking of the Japanese code, which
put many American lives at issue, at stake, was at least in
part responsible for the statute?
Mr. Schoenfeld. Well, there was a joint Committee right
after the war, in 1945, I believe, that made a series of
recommendations to the Congress about tightening security in
the interest of avoiding another Pearl Harbor, and this joint
Committee had made reference to the 1943 Midway Chicago Tribune
case. So when Congress revisited these laws in 1950, it was
taking cognizance of the joint committee's recommendations, and
it explicitly rejected the joint committee's recommendation
that there be very blanket secrecy rules put in effect, and it
carved out this one very narrow area of communications
intelligence for special protection. It didn't want to impose a
blanket secrecy rule, and the newspaper industry at the time--
the New York Times, which was an active member in the American
Society of Newspaper Editors--endorsed the passage of this law.
Chairman Specter. Well, I know that the law was endorsed by
the American Society of Newspaper Editors, but that could cut
both ways. It could cut that they endorsed it because they
thought they were not being prosecuted. Why do you think that
their endorsement--
Mr. Schoenfeld. I think the journalists--
Chairman Specter. Excuse me.
Mr. Schoenfeld. Sorry.
Chairman Specter. Let me finish the question.
Mr. Schoenfeld. I am sorry.
Chairman Specter. What was the basis for your thinking that
their endorsement was a recognition that there were some
circumstances where it would be appropriate to prosecute a
newspaper and a reporter?
Mr. Schoenfeld. I can only conjecture, Senator, but I would
think that in the climate of those years, journalists would
have thought it inconceivable, except for a few perhaps on the
fringes, that there would be journalists who would be eager to
publish vital Government secrets in this area, especially in
light of the experience in World War II and then in the early
days of the cold war facing a nuclear-armed U.S.S.R.
Chairman Specter. Dr. Schoenfeld, what weight, if any,
would you give to the fact that there has never been a
prosecution under 798?
Mr. Schoenfeld. I think that should be given some weight.
Prosecutions of journalists in our country have been
unprecedented, and I think that is a good thing, obviously.
And--
Chairman Specter. Prosecutions of journalists
unprecedented?
Mr. Schoenfeld. Well, not unprecedented, but very rare.
Chairman Specter. Don't tell Judith Miller that.
Mr. Schoenfeld. They are rare. Well, she wasn't prosecuted.
She was held in contempt. But they have been historically very
rare, and that is as it should be. That is right and proper.
However, I think the New York Times crossed a line here. I
would distinguish it also from other recent leak cases. For
example, Dana Priest, a Washington Post reporter, who wrote
about clandestine prisons in Eastern Europe, is probably not an
easy target for prosecution. It seems to me that Section 798 is
not implicated, and you are already into the very murky
territory of the Espionage Act, and there I think the courts
might as well find constitutional objection to prosecution for
that kind of leak.
Chairman Specter. Coming back to the Judith Miller case,
which started off as a national security case on the identity
of the CIA agent, and then shifted to an inquiry into whether
there had been obstruction of justice or perjury, do you think
that there is an adequate basis for jailing a reporter when you
do not have a national security interest in issue?
Mr. Schoenfeld. Well, since Branzburg, the courts have
ruled that journalists are obliged to testify about what they
know regarding criminal matters, so clearly there is no
protection now for journalists. And I think that the--I read
the testimony of the Justice Department officials before your
Committee about the shield law, and I found it very compelling.
I oppose the legislation--that I have seen, in any case--that
was commented on by the Justice Department.
Chairman Specter. Have you had a chance to review the
Lugar-Specter bill?
Mr. Schoenfeld. I am not sure that I have. I reviewed what
was testified to by a Justice Department official by the name
of Chuck Rosenberg, I believe, and not further.
Chairman Specter. Dr. Schoenfeld, you testified that if the
Congress thinks the administration is overclassifying, Congress
can change that. What do you do in a situation where the
Congress does not know what is being classified? You have the
electronic surveillance matter, which you testified about,
disclosed in the New York Times on December 16th. The
administration had only informed the so-called Gang of Eight--
the leaders of both Houses and the Chairman and Ranking Member
of both Houses--which had been a tradition. It did not comply
with the law. As you know, the National Security Act of 1947
requires that the Intelligence Committees of both Houses be
informed.
In the 104th Congress, I was a member of the Gang of Eight
as Chairman of the Intelligence Committee. I do not think they
told us much. They did not tell the Gang of Eight much from
what I saw. But, obviously, informing the Gang of Eight was not
in compliance with the law. Then after the New York Times
disclosure and certain activities undertaken by this Committee,
the administration was willing to tell a Subcommittee of the
Senate Intelligence Committee, 7 of the 15 members. And then
the House of Representatives initially declined to have a
Subcommittee told on the ground that that did not comply with
the statute. But then they finally accepted a Subcommittee of
11.
And then on the eve of the confirmation hearings of General
Hayden, the administration decided to comply with the law. So
now you have the two Intelligence Committees informed. But the
Judiciary Committee, which has the oversight responsibility on
constitutionality, is not informed, nor is the Chairman and the
Ranking Member, which is what the administration sometimes does
when it does not want to inform a full committee.
Now, so you have 15 of 100 Senators informed, and you have
a small percentage of the House informed, the Intelligence
Committees. So how can Congress act to change the
classification when Congress cannot find out what is being
classified?
Mr. Schoenfeld. Well, it appears to me, Senator, that there
is a genuine clash here between the branches; however, within
Congress itself, there does not seem to be an overriding clamor
to change the way that Congress is being informed. In fact--
Chairman Specter. Do you think the absence of an
overwhelming clamor in Congress means anything?
Mr. Schoenfeld. Well, I think it does.
[Laughter.]
Mr. Schoenfeld. Yes, Senator, I think it does. Congress
operates by majorities, and there is not clearly not a majority
in Congress that is pushing hard to change the way that the
Judiciary Committee is informed about executive branch
programs.
Chairman Specter. Let me interrupt you just long enough to
state my agreement with you on that.
Mr. Schoenfeld. I am sorry. Could you repeat that, Senator?
Chairman Specter. No.
[Laughter.]
Chairman Specter. I agree with you that there is not an
overwhelming clamor by Congress, but I would not say that means
a whole hell of a lot, if I may use that expression publicly.
But you are right, there is not a clamor. There is not a
clamor. But where you have a program which violates the Foreign
Intelligence Surveillance Act, which prohibits any electronic
surveillance without a warrant issued by that court, and you
have the interposition by the Government of Article II powers,
inherent power, which trumps a statute, admittedly, but you
can't make a determination as to whether there is a legitimate
exercise of Article II power because it is a balancing test--
the President does not have a blank check. It is a balancing
test. And you can't balance if you don't know what there is
involved. What does Congress do? We could pass another law, but
that one could be ignored, too, under the trumping doctrine. So
what does Congress do?
Mr. Schoenfeld. Well, I think in this kind of clash,
ultimately it is going to be decided as a political question.
If the voters are unhappy with the way that the administration
is treating Congress or unhappy with the way Congress is
asserting its authority, presumably they will let our elected
officials know in the next election. But my sense is that the
voters are not unhappy--
Chairman Specter. Wait a minute--
Mr. Schoenfeld. May I finish my statement? General Hayden,
who was overseeing this so-called illegal program, and
according to some who I have heard argue that he is a criminal
for doing so, was just confirmed by a vote of 78-15 as CIA
Director. So it suggests to me that there is quite a bit of
opinion inside of Congress, and the Senate in particular, that
does not regard this as an illegal program. That kind of vote
is overwhelming.
Chairman Specter. Well, I don't think anybody ever
suggested that anybody was a criminal. To be a criminal, you
have to have criminal intent, and no one has challenged General
Hayden's good faith and the good faith of anybody in the
administration in thinking that there are Article II powers.
But if the voters decide that the Congress ought to be thrown
out and a new Congress put in and Congress passes another law,
the President can ignore that as well. We can throw out all the
House of Representatives in November, throw out enough Senators
to make an impression, but come back and pass another law. If
you don't know what Article II powers are being imposed to
evaluate whether they are being trumped are not, you cannot
tell.
Dr. Schoenfeld, what do you think of the bill which would
give to the Foreign Intelligence Surveillance Court--we had
four former Foreign Intelligence Surveillance judges at this
witness stand, and they examined the legislative proposal which
would give to the FISA Court the program to determine
constitutionality in accordance with the generalized approach
that there has to be a judicial determination of
constitutionality. They have a record for maintaining secrecy,
and they have the expertise. What would you think of giving it
to them to determine constitutionality?
Mr. Schoenfeld. I think that is a perfectly reasonable
suggestion, and I am surprised the administration hasn't moved
with it. But it seems to me a plausible way to resolve this
controversy.
Chairman Specter. Well, the administration has not even
said no, so we are not sure what their attitude is. But they
have been asked many times, and we intend to continue to ask
them more.
Would you be able to answer some questions that we want to
submit in writing, Dean Smolla?
Mr. Smolla. Absolutely, Senator.
Chairman Specter. Dr. Schoenfeld?
Mr. Schoenfeld. I will do my best.
Chairman Specter. Mr. Anderson?
Mr. Anderson. Yes, Senator.
Chairman Specter. Professor Feldstein?
Mr. Feldstein. Yes.
Chairman Specter. There are a lot of good questions which
have been prepared by staff, and I think we have gone about as
far as we can go here on the discussion.
In addition to suggestions, Dean Smolla, on the Lugar-
Specter bill, if you have any suggestions on 798, I would be
interested in them.
Mr. Smolla. I would be happy to supply them, Senator.
Chairman Specter. It may be that Congress ought to leave
that alone. Let me ask you, Professor Feldstein, do you think
Congress ought to pick up 798 in view of what the Attorney
General says, or perhaps more importantly, what Dr. Schoenfeld
says and provide some standards for prosecuting newspapers and
journalists?
Mr. Feldstein. Well, I am not an expert in this area, and I
am not an attorney.
Chairman Specter. If you are not an expert, Professor
Feldstein, tell me who is.
[Laughter.]
Mr. Feldstein. Well, maybe the Reporters Committee for
Freedom of the Press, some press groups like that. You know, it
used to be that reporters felt the First Amendment gave them
enough protection. To me, the idea of prosecuting journalists
under the Espionage Act is outlandish. If I thought there was
serious impetus to do that, then perhaps a legislative remedy
would be a good thing to head that off.
Chairman Specter. Don't you think there is an issue as to
whether there is a serious intent to use these statutes for
criminal prosecution?
Mr. Feldstein. Well, I fear, based on developments
recently, that that is the case, and I think that if Congress
were able to narrow that in, that would be excellent. I would
fear, if Congress tried and failed, that that might be
inadvertently interpreted as a green light.
Chairman Specter. Why inadvertently interpreted? That would
be advertently interpreted.
[Laughter.]
Mr. Feldstein. OK. Fair enough.
Chairman Specter. Mr. Anderson, do you think we ought to
try to set standards for utilization of 798?
Mr. Anderson. I am pretty sure that Dad would have thought
that the First Amendment was the only standard that was needed.
I am pretty sure that it would have been the only standard that
he would have honored. I probably am more inclined to agree
with Dr. Feldstein that when you start to meddle, it becomes
very difficult.
I have not seen and I have not heard discussed today,
including the New York Times case, anything that I would
consider even bordering on espionage or activities by reporters
that were designed to hurt the national security of this
country. But for those reports, we would not even be having
this discussion.
Chairman Specter. Dr. Schoenfeld, do you think we ought to
try to provide some Congressional standards for 798?
Mr. Schoenfeld. Well, 798 appears to me to be rather
unambiguous. That is one of the interesting features about that
law, as compared to Section 793 and the Espionage Act, which we
are not talking about here today. I am talking about Section
798, which is an entirely different statute.
Section 793 and Section 794 are riddled with ambiguities.
In the words of Harold Edgar and Benno Schmidt, who wrote an
exhaustive and very brilliant study of them, those statutes
are, in their words, ``incomprehensible'' and there would be
good reason to review them. However, the benign indeterminacy
that those statutes have created have also served us well over
the years. Perhaps that indeterminate, ambiguous understanding
of the law is now eroding in the face of more aggressive press
willingness to publish secrets, and perhaps there might be some
reason to revisit those statutes as well.
Chairman Specter. Dean Smolla, you have already said you
are unwilling to tamper with it. Do you stand by that?
Mr. Smolla. Except to clarify it is not supposed to be
used. I wouldn't encourage Congress to make it easier to
prosecute journalists. If there was any clarification, it would
be to clarify that it was never intended to reach that.
Chairman Specter. I would be interested in the specifics if
you have some language. I would be interested in the specifics
if anybody has some language on that subject.
Thank you very much, gentlemen. We are going to give you
the written questions because they are profound questions the
staff has prepared. Thank you all.
[Whereupon, at 12 noon, the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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