[Senate Hearing 111-834]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 111-834
 
         THE ESPIONAGE STATUTES: A LOOK BACK AND A LOOK FORWARD

=======================================================================



                                HEARING

                               before the

                       SUBCOMMITTEE ON TERRORISM
                         AND HOMELAND SECURITY

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 12, 2010

                               __________

                          Serial No. J-111-91

                               __________

         Printed for the use of the Committee on the Judiciary



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                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
ARLEN SPECTER, Pennsylvania          JON KYL, Arizona
CHARLES E. SCHUMER, New York         LINDSEY GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         TOM COBURN, Oklahoma
SHELDON WHITEHOUSE, Rhode Island
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel
                                 ------                                

            Subcommittee on Terrorism and Homeland Security

                 BENJAMIN L. CARDIN, Maryland, Chairman
HERB KOHL, Wisconsin                 JON KYL, Arizona
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York         JEFF SESSIONS, Alabama
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
AL FRANKEN, Minnesota                TOM COBURN, Oklahoma
EDWARD E. KAUFMAN, Delaware
                Bill Van Horne, Democratic Chief Counsel
               Stephen Higgins, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................     1
    prepared statement...........................................    35
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     2
    prepared statement...........................................    39

                               WITNESSES

Smith, Jeffrey H., Partner, Arnold and Porter, Washington, DC....     6
Vladeck, Stephen, I., Professor of Law, American University 
  Washington College of Law, Washington, DC......................     3
Wainstein, Kenneth L., Partner, O'Melveny and Myers, Washington, 
  DC.............................................................     8

                         QUESTIONS AND ANSWERS

Responses of Jeffrey H. Smith to questions submitted by Senator 
  Cardin.........................................................    24
Responses of Stephen I. Vladeck to questions submitted by Senator 
  Cardin.........................................................    30
Responses of Kenneth L. Wainstein to questions submitted by 
  Senator Cardin.................................................    33

                       SUBMISSIONS FOR THE RECORD

Lowell, Abbe David, Attorney at Law, McDermott Will & Emery, 
  Washington, DC.................................................    43
Smith, Jeffrey H., Partner, Arnold and Porter, Washington, DC....    48
Vladeck, Stephen, I., Professor of Law, American University 
  Washington College of Law, Washington, DC......................    61
Wainstein, Kenneth L., Partner, O'Melveny and Myers, Washington, 
  DC.............................................................    75


         THE ESPIONAGE STATUTES: A LOOK BACK AND A LOOK FORWARD

                              ----------                              


                        WEDNESDAY, MAY 12, 2010

                                       U.S. Senate,
           Subcommittee on Terrorism and Homeland Security,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 11:03 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L. 
Cardin, Chairman of the Subcommittee, presiding.
    Present: Senators Cardin and Kyl.

 OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR 
                   FROM THE STATE OF MARYLAND

    Chairman Cardin. The Subcommittee will come to order. We 
apologize for the late start. As you know, there were votes on 
the floor of the Senate.
    I am going to ask unanimous consent that my entire opening 
statement be put in the record.
    [The prepared statement of Chairman Cardin appears as a 
submission for the record.]
    Chairman Cardin. I also ask unanimous consent that a letter 
we received from Abbe Lowell, an attorney and a person I have 
known for a long time in regards to the challenges he faced in 
representing defendants under espionage law, also be made part 
of our record.
    [The letter appears as a submission for the record.]
    Chairman Cardin. Let me just start by saying that the 
purpose of this hearing is to establish a record on the 
espionage laws of our country. They were developed really in 
1917 after World War I to deal with traditional spies who 
desired to help our enemies. And as Senator Kyl and I were 
talking about, if you look at the statute, you will see ``code 
books,'' which I am sure people are wondering what that is 
today.
    It was that concern that motivated the Congress in that 
time to pass laws to protect our country against our enemies, 
and that statute has now been used to deal with Government 
officials who leak information and private citizens who get 
information and share it, but have no desire at all--in fact, 
they think they are helping our country, not hurting our 
country. The question is whether these laws are adequate the 
way that they were drafted, and today we have three witnesses 
who are really experts in this area.
    The purpose is not to take immediate action on a specific 
bill. It is certainly not an effort to try to deal with the 
``shield law,'' which has already been acted upon by our 
Committee. The purpose really is for us to get a better 
understanding as to how the espionage law works today with 
today's technology that was not in existence during World War 
I, and whether we need to look at a different type of a statute 
to protect our Nation against both spies and those who have 
sensitive information and unlawfully disclose that information. 
And I really do thank our three witnesses that are here to 
share their expertise with the Committee.
    With that, I would yield to Senator Kyl.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you very much, and, Mr. Chairman, thank 
you for holding this hearing on a subject which is very 
important and undoubtedly needs to be addressed now. We were 
talking on the way over about the need probably to replace 
terms like ``code books'' with ``electronic information'' and 
things of that sort; ``national defense,'' maybe changing that 
to ``national security,'' and things of that sort. And we 
really appreciate the recommendations in the testimony. Mr. 
Smith, I read your testimony last night, and you had a lot of 
good ideas in there about that.
    I also, though, want to focus on something else as well. 
Let me ask unanimous consent to put my statement in the record.
    Chairman Cardin. Without objection.
    [The prepared statement of Senator Kyl appears as a 
submission for the record.]
    Senator Kyl. I will just raise the question. I will be 
interested in the witnesses' basically addressing this issue. 
We have significant whistleblower statutes on the books now to 
enable people who have legitimate reasons for disclosing 
classified information to be able to do so in a protected 
environment. I do not have a lot of sympathy for people who 
decide on their own to bypass those statutes, and knowing that 
the release of information or leak of information to a 
newspaper, let us say, that is published has the identical 
effect as releasing that information to a foreign spy would 
have for the purposes of the enemy, believing that it is OK and 
then not being able to prosecute it. I would like to get your 
reaction to that.
    And with regard to the question of motive, as I recall, the 
Israeli spy--I have forgotten his first name; Pollard was his 
last name--had a very good motive. He did not want to hurt the 
United States at all, but he did want to help his country of 
Israel. He is serving life in prison because motive in that 
case did not matter. It was the effect of the leak of the 
secrets to another government that was the problem.
    So everybody recognizes that leaks are a problem. Nobody 
seems to have a good idea about how to stop it. And I did 
appreciate, again, Mr. Smith, some of the ideas that you had in 
your testimony. But I would like to delve into that a little 
bit more during the hearing.
    So, Mr. Chairman, thank you for, again, raising this very, 
very important subject, and I think it will be beneficial for 
our colleagues.
    Chairman Cardin. Well, thank you, Senator Kyl. I just want 
to underscore the points that you raised because I think this 
is critical to trying to understand the espionage laws. I was 
reading the material for today's hearing and was fascinated by 
the court in the Rosen case adding a mental state requirement, 
which I would be interested to see as we develop this hearing 
as to how the statute has been basically interpreted by the 
courts over the last 100 years, changing, I think, the original 
intent of the statute to try to meet current circumstances. But 
it may not serve all the circumstances that we have to deal 
with, and you mentioned the whistleblower issues, and that is a 
good point. Congress passed the whistleblower statute in order 
to provide a mechanism where a person working for a sensitive 
agency could come forward in a protected way. Well, if that 
employee does not use that process, then are these statutes 
adequate to deal with it? I think the points that you raise are 
ones I hope that we will address through the three witnesses.
    We have Stephen Vladeck, who is a Professor of Law at 
American University School of Law. Professor Vladeck is a 
nationally recognized expert on the role of the Federal courts 
in the war on terrorism, and has authored numerous law review 
articles on espionage statutes and terrorism-related issues. He 
has also been part of the team of attorneys who have been 
litigating important national security issues relating to the 
use of military tribunals at Guantanamo Bay.
    Jeffrey Smith is currently a partner in the D.C. office of 
Arnold and Porter. He heads the firm's national and homeland 
security practice. Mr. Smith previously served as General 
Counsel of the Central Intelligence Agency and currently serves 
on the CIA Director Leon Panetta's External Advisory Board. Mr. 
Smith also serves as General Counsel to the Senate Armed 
Services Committee, and prior to working in the Senate, he was 
Assistant Legal Adviser in the State Department and as an Army 
Judge Advocate General officer. As the head of Arnold and 
Porter's National homeland security practice, Mr. Smith's 
clients have included individuals and media organizations 
involved in leak cases.
    Finally, Kenneth Wainstein, who is also currently an 
attorney in private practice and a partner in the D.C. office 
of O'Melveny and Myers. Mr. Wainstein previously served as the 
first Assistant Attorney General for National Security during 
the Bush administration where he was responsible for the 
supervision of espionage cases, and also formerly served as a 
United States Attorney for the District of Columbia. Mr. 
Wainstein also previously served as General Counsel and Chief 
of Staff to the FBI Director Robert Mueller.
    So we will start with Mr. Vladeck, and then we will work 
our way through the witnesses. Thank you.

  STATEMENT OF STEPHEN I. VLADECK, PROFESSOR OF LAW, AMERICAN 
      UNIVERSITY WASHINGTON COLLEGE OF LAW, WASHINGTON, DC

    Mr. Vladeck. Thank you, Mr. Chairman and Senator Kyl. It is 
an honor to testify before the Committee today on such an 
important but neglected topic.
    Mr. Chairman, you mentioned the importance of the Espionage 
Act and its significance in our fight to avoid espionage and 
the implications for our National security. And I think we can 
all agree that this is an important goal that really cuts 
across aisles, cuts across ideologies, et cetera.
    But as significant as the Espionage Act is, and has been, I 
think it is fair to say it is also marked by profound and 
frustrating ambiguities and internal inconsistencies. 
Attempting to distill clear principles from the state of the 
Federal espionage laws in 1973, two Columbia Law School 
professors--Hal Edgar and Benno Schmidt- -lamented that the 
longer they looked, the less they saw. Instead, as they 
observed, ``we have lived since World War I in a state of 
benign indeterminacy about the rules of law governing defense 
secrets.'' If anything, such benign indeterminacy has only 
become more pronounced in the four decades since--and, 
according to some, increasingly less benign.
    My written testimony elaborates upon the statutory scheme 
in a bit more detail. But for present purposes, suffice it to 
say that, in my view, there are four significant problems with 
the Espionage Act in its current form.
    The first and most systematic defect to which, Mr. Chairman 
and Senator Kyl, you both already alluded concerns its 
ambiguous scope, by which I mean whether it applies to anything 
beyond classic spying. Enacted to punish ``espionage,'' which 
Black's Law Dictionary defines as ``The practice of using spies 
to collect information about what another government or company 
is doing or plans to do,'' the plain text of the Act fails to 
require a specific intent either to harm the national security 
of the United States or to benefit a foreign power. Instead, 
the Act requires only that the defendant know or have ``reason 
to believe'' that the wrongfully obtained or disclosed 
``national defense information'' is to be used to the injury of 
the United States, or to the advantage of any foreign nation.
    As a result, the Act could be applied as currently written 
to prosecute Government employees or private citizens in cases 
bearing little resemblance to classic espionage. Such cases 
could include situations in which a Government employee seeks 
to reveal the details of an unlawful secret program, or to 
bring to the attention of the relevant Inspector General or 
oversight officer the existence of information that was 
wrongfully classified; and cases in which a private citizen 
comes into the possession of classified information with no 
desire to harm our National security. In each of these 
circumstances, an informed citizen would certainly have 
``reason to believe'' that the relevant information, if 
publicly disclosed, could cause injury to the national security 
of the United States. That knowledge, though, need not--and 
often will not--bear any relationship to the defendant's actual 
motive. And I think we saw this in the Rosen case.
    Indeed, in his ruling in the Rosen case, Judge Ellis 
specifically said that the language of the statute leaves open 
the possibility that defendants could be convicted for these 
acts, despite some salutary motive, which Senator Kyl already 
mentioned.
    Now, I said there were four significant problems with the 
Espionage Act. Let me briefly describe what I say as the other 
three key defects, obviously, upon which I would be happy to 
elaborate.
    Related to the ambiguous scope of the Espionage Act is the 
question of how, if at all, it applies to whistleblowers. For 
example, the Federal Whistleblower Protection Act protects the 
public disclosure of a violation of any law, rule, or 
regulation, only ``if such disclosure is not specifically 
prohibited by law, and if such information is not specifically 
required by Executive order to be kept secret in the interest 
of national defense or the conduct of foreign affairs.'' 
Similar language appears in most of the other Federal 
whistleblower protection statutes.
    To be sure, the Federal whistleblower statute, the 
intelligence community whistleblower statute, and the military 
whistleblower statute all authorize cleared Government 
personnel in national security cases to receive information 
from the putative whistleblower. And yet there is no specific 
reference in any of these statutes to the Espionage Act or to 
the very real possibility that those who receive the disclosed 
information, even if they are ``entitled to receive it'' within 
the meaning of the Espionage Act--and that itself is hardly 
clear--might still fall within the ambit of Section 793(d), 
which prohibits the willful retention of national defense 
information. Superficially, one easy fix to the whistleblower 
statutes might be amendments that made clear that the 
individuals to whom disclosures are supposed to made under 
these statutes are ``entitled to receive'' such information 
under the Espionage Act. But Congress might also consider a 
more general proviso exempting protected disclosures from the 
Espionage Act altogether.
    Another important and related ambiguity with the Espionage 
Act is whether and to what extent it might apply to the press. 
As with the whistleblower example I just described, a reporter 
to whom a Government employee leaks classified information 
could theoretically be prosecuted merely for retaining that 
information and could almost certainly be prosecuted for 
disclosing that information, including by publishing it. And 
yet it seems clear from the legislative history surrounding the 
original Espionage Act that Section 793(e) was never meant to 
apply to the press; indeed, three other provisions of the 
Espionage Act specifically prohibit publication of national 
defense information, and another, broader limitation on the 
retention of national security information by the press was 
specifically scrapped by Congress in 1917, suggesting that the 
Act is express in those few places where it specifically 
targets news gathering.
    Finally, the Espionage Act is also silent as to potential 
defenses to prosecution. Most significantly, every court to 
consider the issue has rejected the availability of an 
``improper classification'' defense--a claim by the defendant 
that the information he unlawfully disclosed was, in fact, 
improperly classified. If true, of course, such a defense would 
presumably render the underlying disclosure legal. It is 
entirely understandable, of course, that the Espionage Act 
nowhere refers to ``classification'' since the modern 
classification regime post-dates the Act by over 30 years. 
Nevertheless, given the well-documented concerns today over the 
overclassification of sensitive governmental information, the 
absence of such a defense--or, more generally, of any specific 
reference to classification--is yet another reason why the 
Espionage Act's potential sweep is so broad.
    Now, although statutory ambiguity is hardly a vice in the 
abstract, in the specific context of the Espionage Act, these 
ambiguities have two distinct--and contradictory--effects. 
Testifying before Congress in 1979, Anthony Lapham, then the 
General Counsel of the CIA, put it this way: ``On the one hand 
the laws stand idle and are not enforced at least in part 
because their meaning is so obscure, and on the other hand it 
is likely that the very obscurity of these laws serves to deter 
perfectly legitimate expression and debate by persons who must 
be as unsure of their liabilities as I am unsure of their 
obligations.''
    And to whatever extent these problems have always been 
present, recent developments lend additional urgency to today's 
endeavor. In addition to the AIPAC case I mentioned earlier, a 
report released just last week by the Heritage Foundation and 
the National Association of Criminal Defense Lawyers 
highlighted the growing concerns among courts and commentators 
with the problems of vague and potentially overbroad criminal 
statutes, even in modern criminal laws, let alone antiquated 
laws like the Espionage Act. Indeed, just last month, the 
Supreme Court in the crush- video decision reiterated its 
concern with Congressional statutes that may chill 
constitutionally protected speech. As Chief Justice Roberts 
emphasized for an 8-1 majority, the Court ``would not uphold an 
unconstitutional statute merely because the Government promised 
to use it responsibly.''
    Although it is not my place to make specific 
recommendations to this Subcommittee with regard to how the 
Espionage Act might be updated, it does seem clear that the 
current state of the law is counterproductive regardless of the 
specific policy goals one might seek to pursue. At the end of 
his decision in the Rosen case, Judge Ellis specifically 
suggested that the time was ripe for Congress to revisit the 
issue, and, Mr. Chairman, I want to thank you and the Committee 
for taking up his call.
    Thank you.
    [The prepared statement of Mr. Vladeck appears as a 
submission for the record.]
    Chairman Cardin. Thank you very much for your testimony.
    Mr. Smith.

  STATEMENT OF JEFFREY H. SMITH, PARTNER, ARNOLD AND PORTER, 
                         WASHINGTON, DC

    Mr. Smith. Mr. Chairman, Senator Kyl, it is a privilege to 
be here this morning to address this very important subject.
    It is often said that the first responsibility of our 
Government is to provide for the security of our citizens, and 
doing so means that some information must necessarily be kept 
secret--from our adversaries and from public disclosure. And 
the criminal law plays an important role in protecting that 
information.
    There is no real debate over whether real spies, the 
Aldrich Ameses, the Robert Hanssens, the John Walkers, and the 
Colonel Abels of this world should be prosecuted. However, more 
difficult questions are presented as we seek to prosecute those 
who leak properly classified information to the press. It is 
these leak cases that present the hardest questions.
    Before turning to the leak questions, let me make three 
modest suggestions that I think could enhance the ability of 
the Government to prosecute real spies. And Senator Kyl 
graciously mentioned a couple of these, as did you, Mr. 
Chairman.
    First, the statutes have a long list of documents that 
include things like signal book--I have no idea what a signal 
book is and doubt that the Government still has such things. I 
think one approach would be to replace it with the words 
``information in whatever form.'' If that is too vague, perhaps 
another approach would be to say ``electronic media'' or 
``information in electronic form'' in the list.
    Secondly, the statutes speak of ``information relating to 
the national defense.'' I am concerned that language is too 
narrow. It is true, as courts have, as Judge Ellis points out 
in his August 2006 opinion, interpreted the term broadly to 
include information dealing with military matters and more 
generally with matters relating to the foreign policy and 
intelligence capabilities. But I do think it should be replaced 
with the term ``national security'' and adopting a definition 
similar to that in the Executive order, that is to say, ``the 
national defense or foreign relations.'' And I suggest this 
because I have had some experience, particularly when I was at 
the Department of State, where we had a prosecution where we 
had, frankly, to strain to find documents that had been given 
through a real spy to the North Vietnamese Government that 
related to traditional diplomatic exchanges.
    Third, I suggest the term ``foreign nation'' be changed to 
``foreign power,'' similar to that used in FISA, because we are 
dealing with al Qaeda and Taliban that are not foreign nations.
    Let me turn to the issue of those who leak classified 
information. Every administration in which I have served has 
suffered from leaks that have been truly harmful. And every 
administration has struggled to solve the problem, but none has 
had much success.
    The most recent legislative example was the Shelby 
amendment in 2002--pardon me, initially 2000. It was vetoed by 
President Clinton who said it would ``unnecessarily chill 
legitimate activities that are the heart of a democracy.'' And 
you will recall the Shelby language was limited only to 
Government employees, not to the press.
    But I think President Clinton's veto put his finger on an 
important issue, and that is the fact that senior Government 
officials often talk to the press on background, with 
authorization, and provide information that is, in fact, 
technically still classified. But they do so anonymously and 
without taking the formal steps to declassify the information. 
What often happens is the journalists then will call around, 
and they will find out other information related to that part 
that has been disclosed to them that the administration did not 
want disclosed, but the person who gets the call from the 
journalist does not know that the backgrounder has occurred, 
and it can set in motion a tone that suggests to people that 
the executive branch is not serious about protecting secrets. I 
do not want to overstate this, but I do think the key to 
preventing leaks is discipline from the top.
    In other words, when an administration puts out sensitive 
information, even in the controlled fashion, in a legitimate 
effort to inform the public, they can hardly be surprised when, 
having permitted the press to pull on the first thread, the 
whole sweater unravels.
    The matter came up again in 2002-2001, I beg your pardon. 
Instead of enacting the Shelby amendment, the Congress directed 
Mr. Ashcroft, then the Attorney General, to submit a report, 
which he did in October 2002. I believe those recommendations 
still stand admirably, and I urge the Committee to take a look 
at those and to work with the administration to try to 
implement some of those ideas which were designed to prevent 
unauthorized disclosures.
    Leaks are a real problem, Mr. Chairman, and I think we need 
to address them. I have made a few specific suggestions, but I 
do not think it is necessarily a good idea to open the statute 
to try to make it easier to prosecute the press. I think that 
has a lot of issues that just may not--the gain may not be 
worth the candle.
    I want to end by quoting one of my most admired law 
professors. I was in law school when the Pentagon Papers case--
when it was learned that Daniel Ellsberg had admitted to being 
the source to the New York Times. My professor, who had served 
a long time in Government, said, ``I know what we should do; we 
should give him a medal and then send him to prison.'' And that 
captures, I think, the hard choices that need to be made, and 
so I commend this Subcommittee for beginning to take a serious 
look at those hard choices.
    [The prepared statement of Mr. Smith appears as a 
submission for the record.]
    Chairman Cardin. Thank you very much for your testimony.
    Mr. Wainstein.

   STATEMENT OF KENNETH L. WAINSTEIN, PARTNER, O'MELVENY AND 
                     MYERS, WASHINGTON, DC

    Mr. Wainstein. Thank you, Mr. Chairman and Senator Kyl, for 
inviting me to testify before you today along with my two co-
panelists, both men of tremendous expertise in the area of 
counterespionage.
    Since the attacks of September 11, 2001, I have spent much 
of my professional career in the national security world, where 
sensitive sources and methods are really the lifeblood of our 
National security operations, and I have seen firsthand the 
important role that sensitive information plays in our National 
security operations and how those operations can be put in 
jeopardy whenever that information is compromised. And, 
unfortunately, the reality is that that information is 
compromised all too frequently.
    For purposes of today's discussion, I will focus on two 
general types of unauthorized disclosures: first, where a 
Government official passes sensitive information to a foreign 
agent for money or for some traitorous reason, which is the 
traditional espionage scenario; and, secondly, where a 
Government official leaks secrets to the media, maybe out of 
some base self-interest or maybe out of a genuine desire to 
expose official wrongdoing and improve Government operations.
    A key element of stopping both types of disclosures is 
ensuring that in the appropriate cases we investigate and 
prosecute those responsible. As you know, however, the 
Department of Justice has brought a number of strong 
traditional espionage cases over the years, but it has brought 
relatively few prosecutions for leaks to the media. That thin 
track record is not for lack of trying; rather, it is the 
result of numerous obstacles that stand in the way of building 
a prosecutable media leak case. Those obstacles include the 
following:
    First, as a touchstone matter, it is just downright 
difficult to identify the leaker in most cases, given the large 
universe of people who often are privy to the information that 
was disclosed.
    Secondly, there are limitations in the Department of 
Justice's internal regulations, limitations that are in place 
for all the right First Amendment reasons, but they limit the 
ability to subpoena and get information from the one party who 
is in the best position to identify the leaker--i.e., the 
member of the media who received the leak from the Government 
official.
    And, third, even if you can get beyond that challenge and 
the leaker is identified, the agency whose information is 
compromised or was compromised by the leak is often reluctant 
to proceed because of concern that prosecution is just going to 
result in the disclosure of further sensitive information.
    Then, finally, even if the Justice Department succeeds in 
identifying the suspected leaker and indicting the case, it can 
expect to face a very vigorous offense with a wide variety of 
cutting edge legal challenges, the kind of litigation we saw in 
the Rosen and Weissman case that ultimately was dismissed.
    For all these reasons, leak cases--especially leak cases to 
the media--are exceptionally challenging, and the question for 
today is whether any of these obstacles can be addressed by 
changes to the governing legislation.
    While I do not see one sort of legislative silver bullet 
that will overcome all these obstacles, I do see a few areas of 
legislative initiative the Committee might want to consider.
    First, for example, the Committee might examine whether 
Government contractors are adequately covered by the espionage 
statutes. These statutes were passed well before the influx of 
contractors into the Government's most secret or sensitive 
operations, and one of the critical statutes, 50 U.S.C. 783, 
covers Government employees but does not extend to contractors. 
Congress could consider putting Government contractors and 
employees on the same footing in that provision.
    Congress could also consider a number of amendments to the 
Classified Information Procedures Act to ensure better 
protection of classified and sensitive information in our 
criminal trials. I have listed a number of ideas for such 
amendments in my written statement, including several that 
Senator Kyl has proposed. And with the current national 
discussion about prosecuting more international terrorism cases 
in our Article III courts, I think now is a good time to 
consider amending CIPA to enhance our ability to protect 
sensitive information in our criminal trials.
    And then in a more general sense, I think Congress can use 
this hearing and any ensuing hearings to encourage respect at a 
fundamental level for our Nation's operational secrets. 
Congress can send the message that it does not condone the 
unauthorized release of classified information about our 
National security operations. And it can point out that 
whistleblowing is no longer a sufficient justification for 
divulging intelligence community secrets to the public or to 
the press now that the Intelligence Community Whistleblower 
Protection Act provides a mechanism where a Government employee 
who wishes to blow the whistle can actually take that 
information, that sensitive information, in a protected way to 
the Intelligence Committees up in Congress.
    No matter where one stands on the political spectrum or in 
the current debate about the various national security policy 
issues of today, we should all recognize that the unchecked 
leaking of sensitive information can cause grave harm to our 
National security. Congress plays a very important role in 
addressing that problem--whether by legislation, by oversight 
or simply by exhortation--and I applaud the Committee for the 
initiative it is showing with today's hearing.
    I appreciate your including me in this important effort, 
and I stand ready to answer any further questions you may have.
    [The prepared statement of Mr. Wainstein appears as a 
submission for the record.]
    Chairman Cardin. Well, thank you, sir, and I thank all 
three of you for your testimony.
    Shortly, this Committee will start the confirmation process 
of a new Justice to the Supreme Court, and I think there will 
be consensus among all the members of this Committee that we 
believe that Congress is the entity to make our laws. And when 
we see the courts modify our statutes, it reflects either 
action on the courts that we find inappropriate 
philosophically, or a failure of Congress to deal with current 
needs, that needs to be addressed. And I think in the espionage 
world, it is the latter. Congress has not modernized the 
statute, and we really need to deal with it.
    A prosecutor needs to be apolitical. He must look at the 
statute and say, ``Well, look, if the circumstances fit, it is 
my responsibility to bring the action.'' So, therefore, Mr. 
Smith, when you refer to whether a leak is authorized or 
unauthorized, I am not sure I find that in the criminal statute 
anywhere. So it does raise a question as to whether the 
espionage statute in and of itself needs to be focused toward 
those who are participating in traditional spy activities, and 
whether the CIPA statute and others need to be strengthened in 
order to deal with leaks, or whether we can handle both under 
one statute or not.
    Mr. Smith. The problem is that the term ``authorized 
leaks'' has sort of crept into the lexicon because that is what 
often happens, as we know. And my concern is that it also sets 
a tone that somehow enables or empowers others to leak. If they 
see that a very senior official is talking, then they are less 
constrained not to talk.
    In terms of handling it as a criminal matter, whether one 
could make those kinds of distinctions and rewrite the statute 
so that you focus on different types of disclosures that have 
different purposes in mind, I do not know. But it certainly 
undermines the effectiveness of the statute when this sort of 
practice occurs. And what happens, of course, is that you 
sometimes find an administration talking about A through D in a 
particular subject, and they are perfectly happy to have that 
out in the press and talked about because they think it is a 
legitimate issue. But then when somebody else puts out F 
through G on that same set of subjects, they get furious, 
insist that it is a leak, and refer it to the Justice 
Department for prosecution and investigation.
    Now, you almost never find the leaker, but if you did, one 
could imagine a very difficult set of circumstances that 
prosecutors would face in trying to prove where the 
administration had chosen to draw the line between things that 
they were comfortable being talked about and things they were 
uncomfortable being talked about.
    So the question, I think, goes back to, as you alluded to 
in your opening remarks, about who--as did Senator Kyl--who 
decides what harm will result. That is principally a 
governmental function, and it is a very difficult line to draw.
    Chairman Cardin. Well, I think it just raises the issue of 
whether we can deal with the espionage statute in isolation. 
CIPA and the whistleblower and the other related statutes that 
we have that are aimed at establishing practices that, when you 
leak information, you are violating those practices.
    Mr. Smith. I completely agree, Mr. Chairman. If I was not 
clear, they are linked. There are a number of statutes that fit 
together, and one ought to look at them comprehensively.
    Chairman Cardin. Is there a difference here in regard to 
those who sign a non-disclosure agreement with the Government 
and those individuals who do not sign a non- disclosure? Does 
that present a different hurdle in regard to current espionage 
laws or related statutes? Anybody care to----
    Mr. Vladeck. I will take a shot at it. You know, I think, 
Mr. Chairman, it would depend, and I think that is part of the 
problem with the Espionage Act, is the ambiguity in the 
language. You know, various provisions refer to whether the 
disclosure was authorized or not, whether the individual was 
lawfully in possession of the information or not.
    I do not actually think it is a legally dispositive 
distinction, by which I mean I think you could prosecute an 
individual under the Espionage Act as currently written, 
whether they had signed a non-disclosure agreement or not. But 
I do think that that creates yet another ambiguity. And I 
suspect that the courts today would find, you know, perhaps 
more trouble in that ambiguity in the context of a Government 
employee who had not signed such an agreement; whereas, the one 
who had signed an agreement might be held to have waived 
whatever protections he might have had.
    But I have to say, I think this actually highlights part of 
the issue here, which is that the statute is written in such 
general terms at a time before these kinds of agreements would 
have even been contemplated by Congress, that if that is a 
distinction that is worth pursuing, I do not think the current 
text of the statute would support it.
    Chairman Cardin. Well, one of the complexities here is the 
statute applies to private citizens, it applies to Government 
employees, it applies to Government contractors. So there is a 
whole mix of individuals that this one statute applies to.
    Mr. Vladeck. Well, if I may, I think Mr. Wainstein already 
referred to the issue of contractors. The oddity is that 
separate from Section 783, Section 793(f)(2) refers to 
reporting to a superior officer that you have the information 
and that you are potentially in possession of classified 
information. That presupposes that you have a superior officer. 
So even on the question of whether the statute applies to non-
governmental employees, I think the answer just depends on how 
you cut it. And I think there are concerns with applying it so 
broadly when the language seems to contemplate chains of 
command that you might not see in the private workplace.
    Chairman Cardin. Do any of you want to comment about the 
challenges to a prosecutor under the Garrity case where, if the 
information is required to be disclosed by your employer, it 
can compromise the ability of a prosecutor to bring that case? 
Is that something we need to deal with?
    Mr. Wainstein. Yes, Mr. Chairman, I would be happy to 
handle that. The concern you are alluding to is a very real 
concern in criminal prosecutions across the board--whenever you 
have a Government employee who gets interviewed as part of an 
investigation into wrongdoing and is told as a condition of 
your employment you have to submit to this interview, that 
employee then gives a statement, and that statement then gets 
factored into an ensuring criminal investigation and 
prosecution. The problem is that statement was compelled by the 
Government, and then that can infect the whole prosecution. 
Because if you have a compelled statement that gets factored 
into the investigation and the prosecution should not have been 
using that statement or knowledgeable about the statement 
because it was compelled against that person's rights, then it 
can affect the whole prosecution and really undermine it.
    There was the Blackwater case recently that has gotten a 
lot of attention where the case got dismissed for fundamentally 
that reason.
    It is an issue in espionage cases, though I think the way 
it typically plays out is there is a protocol in place where, 
if an intelligence agency, let us say the CIA, thinks there has 
been a leak, they make a referral to the Department of Justice, 
and there are these 11 questions. It is a standard form, and 
the agency whose information was leaked answers these 
questions, sends them to the Department, and the Department of 
Justice then decides whether or not to initiate a criminal 
investigation. If a criminal investigation is initiated, then 
typically the agency stands down on its administrative process 
so as not to cause that problem.
    So there is coordination that avoids that problem, but it 
is not foolproof. Every now and then, for instance, if a 
subject of an investigation is working in the agency and there 
is a criminal investigation going on, that person might just 
come up for his 5-year re-up on his background and have to go 
in and be polygraphed. If he is being told, ``You have to be 
polygraphed'' and is then questioned about ``have you ever 
disclosed confidential information,'' and that person then 
admits it, that compelled statement then gets into the 
investigation and can taint the whole investigation.
    It is an issue that we typically are able to work around in 
espionage cases. I am not sure that it is something that 
actually -for which there is a legislative fix that I can think 
of, but it is one of the problems. I could not recite all the 
obstacles to successful leak investigations, but it is one of 
the ones we have to deal with.
    Chairman Cardin. All right. Well, thank you. I appreciate 
that answer.
    Senator Kyl.
    Senator Kyl. Thank you.
    Let me just ask a question. I gather all three of you 
probably know the answer to this. But in either a leak or an 
espionage case, I gather that the classification under the law 
of confidential, secret, and top secret, which--for example, I 
will just read the middle one. Secret is applied to information 
``the unauthorized disclosure of which reasonably could be 
expected to cause serious damage to the national security.'' 
And there is a higher standard for top secret, a lower standard 
for confidential.
    Is the defense able to go behind that classification in 
effect to say this information really could not reasonably be 
expected to cause damage or serious damage.
    Mr. Vladeck. Senator Kyl, actually I think the case law is 
pretty clear that the defendant cannot raise that defense. I 
think there is a Ninth Circuit decision from the 1970s called 
United States v. Boyle that specifically deals with that 
question, where it would sort of defeat a purpose to allow the 
defendant to attack in court whether a document was properly 
labeled.
    Senator Kyl. Do the others of you agree? So then the 
President, in effect, or his agents have determined that fact 
by classifying the information at a certain level. Is that 
correct? Do you all agree with that?
    Mr. Smith. Yes.
    Senator Kyl. Oaky. Then let me make this observation, and I 
am just going to quote--I am just going to pick on one of you, 
Mr. Smith, because you said it, I think, very well: ``Those who 
become real spies should be prosecuted with the full might of 
the Government. Those who, without authority, leak to the media 
or others not authorized to have possession of classified 
information should similarly be prosecuted.''
    Now, that is what I want to get to here, that second 
category. I think we all agree that as to the first category 
the statutes can be modernized, cleaned up. That is something 
that you could usefully help us do, but it is that second 
category where we have some issues. And let me just posit two 
general points here and then ask the three of you to get into 
it. And in your testimony, each of you in some way or other 
dealt with these problems. You have got the problem of the 
official leak, and I think, Mr. Wainstein, you made this point 
in your opening statement, that there can be a concern arise 
among the people in the agency if they see a lot of official 
leaks being done apparently with some kind of authority. What 
does that do to the rule of law and their expectation of 
deterrence? To me, it undermines it. It is not good. But there 
is an easy solution to it. You either have someone authorize 
the leak who is in the position of authorizing it. Presumably 
that happened, if the excuse is this was an authorized leak of 
classified information. Somebody had to make the decision that 
it was OK in this for specific purposes to do it.
    Well, you can either have that and/or you can declassify 
the information just before the leak occurs so that there is no 
question about it.
    Both of those seem to me to be preferable solutions to not 
prosecuting because somebody authorized it--or maybe somebody 
did not authorize it, and it is hard to distinguish. Reaction?
    Mr. Smith. Since I have spent a fair bit of time thinking 
about this, Senator--and I think I raised it in my statement--
the concern--you have put your finger on it precisely. In an 
ideal world, when--let us take a real case example. The 
Secretary of State--there is an upcoming ministerial meeting. 
The Secretary of State decides that the press should be 
``backgrounded'' on what we are going to talk about. It happens 
daily. The story in the newspaper the next day says, 
``Officials close to the negotiations say'' da, da, da, da, da, 
but they cannot disclose their names because they spoke on 
condition of anonymity. That was probably decided at the 
Secretary of State's morning meeting the day before, cleared 
with the White House, and they backgrounded the press.
    Somebody made a decision, however, as to where that line 
would be drawn between what would be given to the press and 
what would not be. They also felt that they did not want to 
officially acknowledge that, let us say, the Deputy Secretary 
of State spoke on the record about this. They like the 
anonymity. It gives them flexibility. It gets out there----
    Senator Kyl. Anonymity is Okay. No problem there.
    Mr. Smith. But the problem is nobody then formally 
declassifies that information so that the documents floating 
around the Government with the talking points and so on are 
still technically classified.
    Senator Kyl. Do you think that is good policy? Or would it 
not, in fact, be a rather simple and, in fact, important way to 
solve this problem? Nobody should be leaking information. If 
the Secretary of State decides that it is a good thing to do, 
then I am all for it being done. But there should be a simple, 
quick process by which it can be done, either--you say cleared 
by the White House. Okay, so that no longer is classified 
information, correct?
    Mr. Smith. Right.
    Senator Kyl. Or--and I do not know how you can do this. I 
guess we would have to provide in law. It may still be 
classified, but there is an exception for certain officials to 
leak the information.
    Mr. Smith. Well, I certainly would not be in favor of the 
latter. I think that is unmanageable. But the former, where----
    Senator Kyl. But that is what is being done today.
    Mr. Smith. You are precisely correct, and nobody really 
seeks to prosecute those cases because nobody refers them to 
the Justice Department. What does get referred to the Justice 
Department is people who then leak around the edges of that and 
go further than the administration wanted.
    Senator Kyl. Excuse me for interrupting, but because we do 
not have a clear procedure, it gets to be a pretty gray area as 
to whether you are--when you get the follow-up call from the 
reporter, are you really adding to that and so on? We need to 
make that line bright so that we do not get into the Valerie 
Plame series of telephone call assumptions as played out a year 
or so ago.
    Mr. Smith. I think that is the solution. It may prove very 
difficult to administer and to make it workable, because one 
could imagine the Secretary of State not wishing to send around 
a piece of paper that said, ``Well, I authorize the Deputy 
Secretary of State to disclose this kind of information.'' But 
in the absence of that, it does seem to me that you have these 
other problems, and if we could have a system that acknowledged 
that and somehow regularized it, I think it would be valuable 
for a variety of reasons, including hopefully discouraging 
others from leaking things that should not be leaked.
    Senator Kyl. Yes, exactly. Thank you.
    Just in the 20 seconds I have left, comments by the other 
two panelists on that particular point? Then I will make my 
second one later.
    Mr. Wainstein. I am sympathetic to your point, Senator, 
about the nebulousness of the authority issue, and, you know, I 
think it is worth pursuing whether there is a brighter line 
that would be in some ways more easily administrable and maybe 
even fairer.
    Mr. Vladeck. And just quickly, because I suspect we will 
come back to this, I also think that this conversation 
presupposes that we are all in the same place with regard to 
the current regime for classification and that we are willing 
to accept that the current regime for classification works 
adequately both in ensuring that the right information is 
classified and that the wrong information is not. And I guess, 
Senator, I would just say that is not an assumption I am 
necessarily comfortable making.
    Senator Kyl. I appreciate that that is a different 
question, though, and it is one that deserves examination. But 
we have to start from a premise and--Okay, good. Thank you very 
much.
    Chairman Cardin. I want to follow up on Senator Kyl's point 
because I agree with him, and I want to just go through a 
couple scenarios. Some of it is personal because we get 
sensitive and classified information that we read about in the 
paper, and we are always puzzled as to how much we were 
restricted.
    But let us take that Secretary of State example and the 
person who is responsible to give the information to the 
communication person who is making it available on background, 
mistakenly gives pages 1, 2, 3, when they are only supposed to 
give pages 1 and 2. All the information is classified.
    Where is the legal responsibility there? I guess I do not 
understand authorized leaks from the point of view of the 
criminal culpability under the statute. To me, if you 
intentionally give our information that is sensitive, there is 
vulnerability. I understand the court is interpreting this with 
intent to harm our country, and this is certainly not with 
intent to harm our country. But how do you draw this line if 
you do not have in practice a procedure that Senator Kyl has 
talked about where the information is no longer classified as 
sensitive or classified?
    Mr. Smith. Well, I would defer to Mr. Wainstein on the 
issue of prosecutions because that is difficult. But it does--
you have put your finger on a critical question. I think that 
in the absence of that kind of a system, I do not know where 
the criminal culpability should be, but I have seen instances 
in which a Secretary of State asked an Assistant Secretary of 
State to background the press, the Assistant Secretary went 
further than the Secretary wanted, thinking, however, that he 
was carrying out what the Secretary directed him to do. The 
Secretary got very, very angry and eventually wrote a letter to 
the Assistant Secretary. That was a disciplinary action. And it 
was a lack of clear communication about exactly what the 
Secretary wanted disclosed.
    Given the time pressure on these officials, it is hardly a 
surprise that that happens, but this is a criminal statute 
where clear lines--we need to make an effort to try to draw as 
clear a line as possible.
    Chairman Cardin. That is my point and I think Senator Kyl's 
point. There needs to be a process here, because let me take it 
then to someone who is not on the same page here. Someone--let 
us take from the Congress of the United States--who has been 
shared the same information in a classified setting and then 
sees it released by background without name by the 
administration. Is that Congressman then permitted to share 
that information and comment on it? I think the answer is no, 
but where do you draw the line? It seems to me that if you do 
not have a process that has some transparency to it on the 
information that is permitted to be released. It is a very 
fuzzy situation, probably not too much documentation to back 
this up, and if you get an aggressive prosecutor--who has 
independence, remember. Our prosecutors do not have to wait for 
an invitation to investigate. They can do that on their own. 
Aren't we going down a path that could be extremely difficult 
to administer?
    Mr. Smith. It is extremely difficult to administer, and it 
is often not fair. I have known Members of Congress of both 
parties to complain that the administration will come up and 
brief the Congress on some particular project or a program and 
say this is top secret, you cannot talk about it, and then it 
leaks that very afternoon. And it leaks in a way that the 
Members of Congress disagree with because the administration 
has decided to put out their version of things, and Congress 
feels constrained from talking to the press and saying, well, 
we disagree with that, we think it is bad policy. And they are 
inhibited because of the classification that the administration 
has put on it. It is not right. I have seen it done--this is 
truly bipartisan. It is done by both parties in both 
administrations, and it is not right. And it is certainly not 
right then to sort of threaten prosecution to somebody, 
particularly a Member of Congress, who chooses to say something 
to the press that is counter to what the administration has put 
out.
    So greater transparency is critical. How one does that 
realistically would be difficult. But you are both correct that 
it is not right the way it is currently working.
    Chairman Cardin. Well, I think the answer is what Senator 
Kyl is suggesting. There has to be a transparent process for 
declassifying that information if it is going to be made 
available to the public. I mean, the Secretary of State is 
going to have to say these two pages are just no longer 
classified and they are available. Therefore, we all know that, 
and we can comment on it. But to say that it is still 
classified but the press gets it on background only, preventing 
the open discussion of it by those who have knowledge of its 
content is wrong.
    Mr. Smith. There is a countervailing interest, which is the 
hard part here, which is that it is important for senior 
administration officials to put information in the public so 
that the public will know what is going on and be talking about 
it. They often do not want to do it in a way that specifically 
ties officially the administration to that statement. I mean, 
the FOIA litigation over the years has recognized that as a 
viable distinction between something that leaks and later an 
official acknowledgment of the leak, which then does declassify 
it. So it has its useful part.
    But what troubles, has always troubled me about it is that 
there is--who is the decider here? Who gets to decide what is 
classified and what is not? And I have seen administration 
officials try to play it both ways, and then to use the 
criminal law to try to enforce that seems to me deeply 
troubling.
    Chairman Cardin. I want to ask one more question, if I 
might, and that is about the Whistleblower Protection Act, S. 
372 in the 111th Congress. I think all three of you are 
familiar with the operations of the CIA. The whistleblower 
statute that we have provided--how does that work with the CIA 
trying to carry out its mission? Is this the right way to 
provide relief for employees who have concern? Or do you 
believe it prevents the CIA from--or hampers the CIA in its 
mission?
    Mr. Smith. The answer is I do not know, Mr. Chairman. I 
would be happy to think about that and get back to the 
Committee. In my experience with the agency over the years, it 
has not been a problem. But I think it is a question, and with 
your permission, let me think about it a little bit and get 
back to the Committee.
    Chairman Cardin. I appreciate that.
    [The information referred to appears as a submission for 
the record.]
    Mr. Wainstein. I'd like just sort of to talk about the 
general notion of having a mechanism in place where members of 
the intelligence community, employees of the intelligence 
community who see something going wrong that they want to 
disclose, that they can take it through classified, protected 
channels and get it to the Intelligence Committees whose job it 
is to practice oversight and to root out wrongdoing, root out 
problems.
    I think that is exactly the mechanism we need to perfect, 
and I have not studied the new bill, but to the extent that 
more work should be done to make sure that that process is in 
place, it works well, there are user-friendly procedures in 
place so that whistleblowers can get that information up to the 
Intelligence Committees through the IG, the CIA IG, up to the 
Intelligence Committees, and then not be retaliated against for 
it, I am all in favor of it. And I think it is important 
because the more we have a workable process in place for that, 
then the less people can justify their unilateral leaks of 
classified information on the grounds that they were trying to 
blow the whistle. And a lot of leaks to the media are that, and 
they are well intentioned at some level. But at the end of the 
day, they are unilaterally disclosing sensitive information 
that can cripple our operations.
    Mr. Vladeck. If I may briefly, Mr. Chairman, I would just 
add to that. I think relying on the whistleblower statutes 
makes a lot of sense subject to two points. The first is that 
presupposes that either the general counsel of the CIA or the 
Intelligence Committees are in a position to act on this 
information. And there has certainly at least been some 
suggestions by commentators and critics that the law actually 
does not necessarily allow especially the Intelligence 
Committees to take necessary steps beyond that. I think that is 
a difficult question.
    Secondly, even if we all agree that that is the exact 
process we want to be followed, the Espionage Act is silent as 
to its interaction with the Whistleblower Protection Act. And 
so at the very least, I suspect we might find common cause on 
the notion that one could specifically amend the Espionage Act 
to exclude protected disclosures under the various Federal 
whistleblower statutes so that we do not have the concern of a 
chilling effect that it might be unclear, even where the 
whistleblower laws appear to apply, that these disclosures will 
not subject the relevant individuals to prosecution.
    Chairman Cardin. Thank you.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. This is a good 
example of a hearing that could actually produce something 
useful as opposed to much of what we do.
    Let me get to----
    Chairman Cardin. I think that is a compliment.
    Senator Kyl. It is very much a compliment.
    [Laughter.]
    Senator Kyl. The second main thing that I wanted to get to, 
we talked during my first questioning about the so-called 
official leak, and I think we came to a conclusion that there 
needs to be a brighter line and a better transparency so that 
the official leak becomes the authorized official statement of 
unclassified information somehow.
    The second is the sort of good motive leak, either an 
individual thinking ``I know better than the President what the 
administration's policy ought to be, and I am going to leak 
some information that undercuts his policy,'' knowing that it 
is going to get out in the public--and it was Jonathan Pollard; 
I remembered his name--or maybe even this AIPAC case. I only 
know what I have read about it in the newspaper, but it seemed 
to me that I recall one of the defenses, or at least 
discussions in the media was that whatever information may or 
may not have been exchanged there, it was not with an intention 
of hurting the United States, and that was Pollard's defense.
    But it seems to me that that is also dealt with fairly 
easily by two things, but the statute maybe needs to be amended 
to guarantee this. Mr. Vladeck, you got close to this, I think, 
in one comment you made.
    First of all, there are two things, it seems to me, that 
easily respond to the mens rea requirement here. One is the 
classification itself, if, in fact, the classification is a per 
se determination of harm if the information gets out; and, 
second, the mens rea here would consist of two other factors: 
one, knowing that it is unauthorized and intentionally leaked 
or put out. In other words, you did not mistakenly pick up the 
wrong page--I think maybe, Mr. Smith, that was your example. 
You were supposed to release page 2 and 3 and you mistakenly 
released page 1 as well. You would have to know that what you 
released was unauthorized; and, second, you would have to do 
that intentionally. And the harm requirement would be satisfied 
by the classification itself.
    It seems to me that as to the person who is doing the 
leaking, a statute that was clear in those respects would 
satisfy everything that we need except for--and I am leaving 
aside, at least for the moment, the publication by a media 
corporation. In other words, we are not talking about here, at 
least for the purpose of doing this in pieces right now, 
prosecuting someone for publishing the information. Leave that 
aside for a moment. I am just talking about the person who 
leaks the information. Wouldn't that satisfy the statutory 
requirements, and if we stated it that way, it would be much 
clearer and much easier, therefore, to prosecute?
    Mr. Smith. Let me take a first cut at that, Senator Kyl. If 
this statute that you are discussing is focused on the 
Government employee or the person who had authorized access to 
the classified information, I agree with you, that is pretty 
close to what the provision in Title 50 does.
    I am uncomfortable with having it be a per se determination 
that if the President classified it, that is sufficient. I 
still think the Government should have some requirement to 
prove that that, in fact, harm could reasonably be expected to 
occur because I do not--I am a little suspicious of the 
administration overclassifying things.
    Senator Kyl. If I could interrupt you, though, I thought 
you all three agreed that under the case law today, it is not a 
defense that the information--in other words, the defense does 
not go behind the classification to determine the reasonable 
probability of harm.
    Mr. Smith. You are correct. That is what the case law is. 
But I am a little bit of an outlier on this.
    Senator Kyl. So you are suggesting that standard may need 
to be modified in some----
    Mr. Smith. Yes.
    Senator Kyl. Okay.
    Mr. Smith. But the hard part is then when it is then given 
to somebody else who does not have authorized access to it and 
whether the statute that you have just outlined should be 
applied to them. And, again, I think I am pretty comfortable 
with it absent the----
    Senator Kyl. Well, let me just argue with you there 1 
second. First of all, you do not want judges who obviously do 
not have the experience in dealing with classified data that 
the executive branch that does the classification does. That 
has been a criticism of giving judges this ultimate 
determination.
    Secondly, if the problem is that information is too easily 
classified, the individual who is doing the leaking still 
understands that his leak of that is unauthorized, whether he 
disagrees with that proposition or not. And it seems to me 
there are other ways that you deal with that other than just 
deciding to ``take the law into your own hands.''
    Mr. Smith. I completely agree with you. My only concern is 
that I think there does need to be something more to put 
somebody in jail than simply somebody put a classification 
stamp on it. I am troubled with that mere fact.
    Mr. Vladeck. If I may jump in, I would just add to that, 
Senator Kyl. I also think it is worth noting that the case law 
to which both Mr. Smith and I adverted largely pre-dates the 
enactment of the Classified Information Procedures Act and 
largely pre-dates the sort of belief--the creation of a body of 
case law where Federal judges have, in fact, become expert to 
degrees that we may disagree about, at least have some 
experience in handling classified information in criminal 
trials. And so it is possible that some of the concerns that 
led to these decisions, at least initially, have been abated at 
least somewhat by CIPA.
    Senator Kyl. Mr. Wainstein.
    Mr. Wainstein. You will recall that Attorney General 
Ashcroft was asked to look at this issue, look at--I guess it 
is called the Shelby bill, which essentially said what it is 
that you are referring to, Senator, basically said that if you 
are a Government employee--I think also former Government 
employee--and you knowingly and intentionally leak classified 
information, that you committed a crime.
    I think the concern about overclassification is not case 
specific; it is just sort of the broader concern that it puts 
too much authority in the hands of the President to decide what 
is classified and, therefore, what can be criminally--when 
someone can be criminally sanctioned for disclosing it. And it 
might give the Executive too much leeway to maybe classify 
information that really is more embarrassing and less actually 
a matter of national security. That is sort of the broader 
issue.
    And then, of course, there is the question of even if you 
had a statute like this, would it really help increase the 
number of prosecutions? In some ways, it would be easier 
because, I mean, it means that the prosecution would not have 
to prove up the harm, the potential harm, so you would not have 
to go into, let us say, talking about how the information that 
was disclosed was about some operation over in Europe that we 
were doing and how that was--really that disclosure was harmful 
because that operation would have given us the following 
intelligence benefits. Whenever you have to do that in order to 
make your case, you stand the risk of having to disclose more 
information in discovery and in the actual presentation at 
trial.
    A statute like this would lower the burden, make it easier 
to meet the burden, because all you have to show is it is 
classified. And you would not have the same danger of releasing 
more classified information. But I think that there are those 
countervailing concerns about over-classification.
    Senator Kyl. Do you mind if I just follow up? You say it 
would lower the burden, but I am still confused. While the--is 
it Boyd? What is the Ninth Circuit case?
    Mr. Vladeck. I am sorry. I believe it is United States v. 
Boyce?
    Senator Kyl. Boyce. Well, that case may have pre-dated 
CIPA. It is at least still acknowledged by the three of you as 
probably the law in this situation until it is further refined. 
So would what I am proposing really be a change from the law, 
at least as it pertains to going behind the classification? In 
other words, would it be setting up a higher standard?
    Mr. Wainstein. It would not be setting up a higher 
standard. The prosecutor would not have to prove the harm 
element.
    Senator Kyl. But does he have to prove that today beyond 
the classification?
    Mr. Wainstein. Yes, the classification helps, but you have 
to put on additional evidence, typically, and that is what 
happens. In fact, that is often one of the reasons why a case 
like this might not be pursued because of the concern that you 
have to disclose sensitive information in doing that.
    Senator Kyl. So you have to do that--I am now a little 
confused. Maybe you can see why.
    Mr. Vladeck. Senator Kyl, if I may, and I hope this 
alleviates the confusion. I think that the differences between 
whether the information counts as national defense information 
under the Espionage Act versus whether the mens rea that the 
Supreme Court has read into the statute in the Goren decision 
that the defendant knew that the information both was national 
defense information and could harm--knew or had reason to 
believe that the information, if disclosed, could harm the 
national security of the United States. So it is not--knowing 
that it is classified in and of itself may not be enough, 
especially if any reasonable person would be hard pressed to 
see how that information, if disclosed, could cause harm.
    Senator Kyl. So, again, with your permission--and the two 
of you agree with that reading?
    Mr. Smith. Yes.
    Mr. Wainstein. Yes.
    Senator Kyl. So there is a requirement that the Government, 
with some degree of burden, prove that the individual knew that 
national security could be harmed above and beyond the fact 
that he knew he was leaking classified information.
    Mr. Vladeck. That is my understanding of the cases, and I 
think just to go back to Chairman Cardin's point from before, 
the Supreme Court, I think, has adopted that construction 
largely to save what it thought would be constitutional 
difficulties with the lack of such a requirement, at least in 
1941.
    Mr. Smith. And my experience with these cases is the fact 
that it was classified is used as evidence to establish that it 
relates to national security--pardon me, relates to national 
defense and that its disclosure would cause harm. So it is--the 
first thing that prosecutors do is say, Was this properly 
classified and why?
    Senator Kyl. Well, if I could then, just to summarize my 
view on this, it seems to me, with that clarification--and I 
really appreciate that--that with that further requirement, it 
is hard to justify a good-motive leak when, in order to 
prosecute such a case, you would have to establish that he knew 
that he was potentially harming the national defense of the 
United States.
    Mr. Vladeck. Senator Kyl, this just goes back to a point I 
made in my opening statement, and perhaps you and I just 
disagree on this. I think there is a difference, though, 
between knowing that the information you are disclosing may 
potentially harm the United States and having that be the 
motivation for why you are disclosing it. There might be good 
faith separate from your knowledge. Perhaps you are not the 
right person to make that calculation if you are the Government 
employee, but I would resist the assumption that an employee 
could never have good faith simply because he knows that the 
information is classified.
    Chairman Cardin. On that point, Senator Kyl, it seems to me 
you are all saying, though, that, leaving the publication issue 
aside, as Senator Kyl has suggested--we really do not want that 
to be the focus of our work here today. But what you are saying 
is that you do limit this to Government or former Government 
employees like the so-called Shelby bill, that it should not 
apply to private individuals. I am again talking about the 
Rosen case, clearly one that is before us. Do you believe that 
is a different standard?
    Mr. Smith. In the case of the person who had--the laws and 
the regulations speak in terms of people who had authorized 
access. That is either Government employees, former Government 
employees, or contractors. There I think the Government has 
been able to prosecute these cases. I think the fact that it 
was classified, that the individual knew it was classified, and 
disclosed it without some kind of formal authority, that ought 
to be prosecuted. In the case of the--the Rosen case, you will 
recall that the man at the Department of Defense named Franklin 
who gave them the information was prosecuted, and he is in jail 
for a long time. That I think is proper.
    I think what we are talking about is making it easier to 
prosecute those cases by doing some of the things we are 
talking about, perhaps working in some of the idea that if it 
is properly--that if it is classified, that should be 
sufficient, but the Government would still have to--I think we 
are all, at least most of us are agreeing that simply the fact 
that it has got a classification stamp on it should not be 
sufficient to send somebody to jail for 25 years. I think you 
need a little bit more than that.
    The difficulty comes in when it gets into the hands of 
somebody who did not have authorized access. If that person 
then passes it to a foreign government intentionally knowing 
that the foreign government is interested in it, then I think 
that, too, should be a crime. If the person to whom it is 
passed seeks to publish it, either in a newspaper or puts it on 
Facebook or a blog someplace, then that gets a little bit 
harder because presumably the person is putting it out there 
because he or she believes that somehow it is important to talk 
about. That still, in my mind, is a crime, but the motive and 
the purpose gets a little bit more complicated there because 
they may genuinely believe that it is a mistake that this 
particular issue is not being discussed.
    So perhaps we need to have a statute with different types 
of action, different intents, and different punishments, 
depending on the actor and the intent.
    Mr. Vladeck. And if I may, I come at this from a slightly 
different perspective, from the sort of academic long view. I 
think the problem, Mr. Chairman, with going past the 
individuals who are authorized to have the information is that 
it becomes very difficult, as Mr. Smith says, to draw the line 
once you get into the unauthorized access category. You said 
you wanted to bracket the question on publication. I think that 
makes sense. But I think that is the elephant in the room here, 
which is that once we cross the line from those individuals who 
are legally entitled to receive the information to those who 
are not as a category, that question comes into the 
conversation. And so----
    Chairman Cardin. It certainly does, but we are really 
trying to concentrate here on people who specifically are 
giving information out to individuals more so than the news 
media issue.
    Mr. Vladeck. And I think that that goes to--I agree with 
Mr. Smith's suggestion that we might think of--if I take it to 
be a suggestion, that in those cases we might look at a more 
rigid intent requirement as compared to the Government employee 
or the contractor who should simply by virtue of his office 
know and be required to hold onto this information. The private 
person we might think about changing the standards because of 
these concerns.
    Chairman Cardin. Senator Kyl.
    Senator Kyl. Well, Mr. Chairman, let me just say I have got 
a lot of other questions. I also have a lot of other meetings 
because we were so late here. This is an excellent panel. I 
really hope that we can call upon you as we start to try to 
formalize how we might want to respond to all of this for your 
advice in helping us craft ideas for our colleagues perhaps. I 
really appreciate all three of you informing the Committee. It 
was a very helpful hearing, and I hope we can count on your 
free advice in the future here.
    Chairman Cardin. Well, let me just echo what Senator Kyl 
has said. The purpose of this hearing was for us to gather 
information, to get better informed, and to start a record in 
this Committee as to the challenges we have. It clearly will 
require us to look beyond just the espionage statute itself. 
CIPA clearly is involved, the whistleblower statutes. It is 
certainly an issue also concerning not just the passing on of 
information but publishing. We understand that is an issue that 
ultimately comes into the equation, but what we were looking at 
is to try to set up the right formula for the types of 
activities that compromise our National security. I think as 
Mr. Smith said, changing the definition is one I think we all 
would agree needs to be done.
    This has been very, very helpful to us. The hearing record 
will remain open for 1 week for additional questions and 
statements, and I thank our three witnesses. We stand 
adjourned.
    [Whereupon, at 12:13 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]






                                 
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