[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
                  NATIONAL SECURITY LEAKS AND THE LAW 

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 11, 2012

                               __________

                           Serial No. 112-139

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

           Richard Hertling, Staff Director and Chief Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

BOB GOODLATTE, Virginia              ROBERT C. ``BOBBY'' SCOTT, 
DANIEL E. LUNGREN, California        Virginia
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
TED POE, Texas                       HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah                   Georgia
TIM GRIFFIN, Arkansas                PEDRO R. PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania             JUDY CHU, California
TREY GOWDY, South Carolina           TED DEUTCH, Florida
SANDY ADAMS, Florida                 SHEILA JACKSON LEE, Texas
MARK AMODEI, Nevada                  MIKE QUIGLEY, Illinois
                                     JARED POLIS, Colorado

                     Caroline Lynch, Chief Counsel

                     Bobby Vassar, Minority Counsel



                            C O N T E N T S

                              ----------                              

                             JULY 11, 2012

                                                                   Page

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     2
The Honorable Robert Lamar Smith, a Representative in Congress 
  from the State of Texas, and Chairman, Committee on the 
  Judiciary......................................................     4
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     5

                               WITNESSES

Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft LLP
  Oral Testimony.................................................    10
  Prepared Statement.............................................    12
Nathan A. Sales, Assistant Professor of Law, George Mason 
  University
  Oral Testimony.................................................    14
  Prepared Statement.............................................    17
Colonel Kenneth Allard, U.S. Army (Ret.)
  Oral Testimony.................................................    27
  Prepared Statement.............................................    29
Stephen I. Vladeck, Professor of Law and Associate Dean for 
  Scholarship, American University Washington College of Law
  Oral Testimony.................................................    32
  Prepared Statement.............................................    34

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., 
  a Representative in Congress from the State of Wisconsin, and 
  Chairman, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................     6
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................     7
Prepared Statement of the Honorable Robert Lamar Smith, a 
  Representative in Congress from the State of Texas, and 
  Chairman, Committee on the Judiciary...........................     8
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     8


                  NATIONAL SECURITY LEAKS AND THE LAW

                              ----------                              


                        WEDNESDAY, JULY 11, 2012

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                             and Homeland Security,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 10 a.m., in room 
2141, Rayburn House Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
    Present: Representatives Sensenbrenner, Smith, Gohmert, 
Lungren, Forbes, Gowdy, Adams, Scott, Conyers, Johnson, Chu, 
Deutch, and Quigley.
    Staff Present: (Majority) Caroline Lynch, Subcommittee 
Chief Counsel; Arthur Radford Baker, Counsel; Sam Ramer, 
Counsel; Lindsay Hamilton, Clerk; (Minority) Joe 
Graupensperger, Counsel; Aaron Hiller, Counsel; and Veronica 
Eligan, Professional Staff Member.
    Mr. Sensenbrenner. The Subcommittee will come to order.
    Within the last few months, the American people and the 
rest of the world have become privy to an astonishing number of 
revelations concerning the secret operations of our Armed 
Forces and the national intelligence agencies. We have learned 
a Pakistani doctor cooperated with U.S. forces in conducting 
DNA tests to help locate Osama bin Laden. We have learned that 
the President of the United States personally decides the human 
targets of drone strikes in other countries by looking at 
mugshots and brief biographies of targets that we have been 
told resemble a high school yearbook layout. We have learned 
that the United States, in cooperation with its ally Israel, 
sabotaged the Iranian nuclear campaign with the Stuxnet virus. 
We have learned that Obama expanded the assault even after the 
virus accidentally made its way into the Internet in 2010. We 
have learned that the United States sabotaged Iranian computers 
with the Flame virus. We have learned that the CIA takedown of 
an al Qaeda plot to blow up the U.S.-bound airliner involved an 
international sting operation with a double agent tricking 
terrorists into handing over a prized possession, a new bomb 
reportedly designed to slip through airport security. We have 
also learned that the double agent belonged to another ally, 
Saudi Arabia.
    We didn't learn of these secret programs and details 
through spies or other countries' diplomats or even from the 
WikiLeaks scandal. We learned of these secrets from the pages 
of The New York Times and other newspapers. The editors of The 
New York Times and other newspapers have publicly claimed many 
times that they see themselves as having a duty to inform.
    During the Bush administration, The New York Times and 
other newspapers savaged President Bush and the intelligence 
community for its tactics in the war on terror. How times have 
changed. Here is a sample of the headlines that accompanied 
these latest national security leaks: ``Obama Order Sped Up 
Wave of Cyberattacks Against Iran''--The New York Times; 
``Secret `Kill List' Proves a Test of Obama's Principles and 
Will''--New York Times; ``Stuxnet Was the Work of U.S. And 
Israeli Experts, Officials Say''--Washington Post. These are 
not the type of critical headlines that pursued Bush 
administration officials.
    Not only has the Administration not complained about these 
articles, but officials made a planner, operator, and commander 
of SEAL Team 6 who killed Osama bin Laden available to a 
Hollywood director and screenwriter working on a movie about 
this successful raid, according to Pentagon and CIA records 
obtained by Judicial Watch, who got the information through 
FOIA requests.
    The four leaders of the Intelligence Committees have 
condemned these leaks. Senator Feinstein said that she was 
deeply disturbed by these leaks and wants an investigation, and 
she is right. The Attorney General has deployed two U.S. 
attorneys who report to him to investigate the leaks and to 
determine whether anyone from the Administration should be 
prosecuted. Today we will have a look at the law and discuss 
the options available for investigating these disclosures to 
the press.
    These leaks threaten our national security, our relations 
with foreign governments, and continued candor from embassy 
officials and foreign sources. They already have had profound 
consequences. The doctor who cooperated with us was sentenced 
to 30 years in prison by Pakistani authorities. Intelligence 
sources have told us that the Saudi Arabian double agent was 
exposed because of news reports.
    As long as there have been governments, there has been 
information protected by those governments. This country needs 
its secrets kept, regardless if the news media wants to expose 
them to condemn a President or to praise him. This isn't simply 
about keeping the government's secrets secret. This is about 
the safety of American personnel overseas at all levels, from 
the foot soldier to the Commander in Chief.
    It is now my pleasure to recognize for his opening 
statement the Ranking Member of this Subcommittee, the 
distinguished gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    And today we will examine issues related to leaks of 
sensitive government information, sometimes classified, 
sometimes not classified. This hearing is motivated in no small 
part by a recent spate of stories in the news that appear to 
have--as their basis--leaked information from within the 
Federal Government. These stories include details of cyber 
warfare in Iran, a covert mission to thwart a suicide bomber 
bound for the United States, and the Administration's process 
of nominating individuals as targets for drone strikes in Yemen 
and in Pakistan.
    Although these stories may have given some Members a 
renewed sense of urgency, it is important to put them in 
context. There are two points to be made here: First, the Obama 
administration's work to investigate and prosecute suspected 
leaks is without peer. This Administration has prosecuted more 
leaks than all previous Presidential administrations combined. 
Attorney General Eric Holder has appointed two U.S. attorneys 
to lead the Federal investigations into recent leaks. The 
Director of National Intelligence, James Clapper, has issued 
new rules to deter future incidents; among them, rules 
authorizing the inspector general of the defense community to 
conduct an independent administrative investigation even if the 
Justice Department declines to bring criminal charges in a 
specific case.
    Second, the problem of leaks in the Federal Government is 
not new. There were spies at the founding of the Republic. We 
have grappled with this problem in Federal law since the First 
World War. In the modern sense of leaking information to the 
press, we have had to work to balance our security interests 
with the interests of a free and robust press for the better 
part of 50 years.
    These problems are not amenable to easy solutions, 
particularly in light of the fact that we do not always agree 
on the scope of the problem. We all want to protect national 
security so that we can keep our citizens safe. But we cannot 
disregard the right of American citizens in a system of self-
governance, a system that requires the public to be well-
informed.
    When a government official leaks sensitive information to 
the press that reveals the government is engaged in unlawful 
activity, do we simply leave it up to the same government's 
discretion as to whether to prosecute the person for possibly 
serving the public's interest? What about leaks of information 
that do not implicate any national security interest at all? 
Overclassification is an enormous problem in the Federal 
Government, and current law does not distinguish between 
leaking classified information with the intent to harm the 
United States and blowing the whistle on unlawful activity that 
never should have been classified in the first place. Congress 
may soon consider legislation that attempts to address these 
shortcomings in existing law.
    As we move forward, we must be careful. Any decision to 
limit what the public officials and private citizens may say 
about sensitive government information must be balanced against 
the important issues of free speech, due process, and the fact 
that some of this information may reveal improper or even 
criminal government actions.
    Just as the authors of the Espionage Act of 1917 did not 
anticipate our problems with leaks in the digital information 
age, there may be unforeseen consequences of any changes we 
make today. It is easy to overreact to news stories, 
particularly in an election year, but we must be careful before 
we limit what people say, particularly with respect to the 
operation of our government.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    Mr. Sensenbrenner. Thank you.
    The Chair of the full Committee, the gentleman from Texas, 
Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman. And, Mr. Chairman, I 
associate myself with your opening statement.
    Mr. Chairman, recent leaks of highly classified information 
pose a serious threat to our national security and put the 
lives of Americans and our allies at risk. National security 
experts from both Republican and Democratic administrations 
have expressed outrage over the leaks and the effect they have 
on ongoing and future intelligence operations.
    What sets these leaks apart from other leaks we have seen 
is that the media reports that many of these have come from 
highly placed Administration officials. If true, this means 
that Administration officials are weakening our national 
security and endangering American lives.
    National security operational details exist to meet the 
covert needs of the intelligence community that protects the 
American people. As FBI Director Mueller recently testified, 
quote, ``Leaks such as this threaten ongoing operations, puts 
at risk the lives of sources, makes it much more difficult to 
recruit sources, and damages our relationships with our foreign 
partners. And, consequently, a leak like this is taken 
exceptionally seriously, and we will investigate thoroughly.'' 
Director Mueller went on to say, quote, ``I don't want to use 
the word 'devastating,' but this will have a huge impact on our 
ability to do our business. Your ability to recruit sources is 
severely hampered, so it also has some long-term effects, which 
is why it is so important to make certain that the persons who 
are responsible for the leak are brought to justice,'' end 
quote.
    News publications that publicize classified information 
claim to promote increased government transparency, but I 
wonder if their real motivation is self-promotion and increased 
circulation. They claim to be in pursuit of uncovering 
government wrongdoing but dismiss any criticism that their 
actions may be wrong or damaging to our country.
    These leaks have also resurrected debate on First Amendment 
protections afforded to media publications. What are the 
boundaries of free speech? How do we balance this freedom with 
the government's need to protect certain information?
    I hope the Justice Department will bring the full force of 
the law against those who leak protected information. We can 
judge whether the Administration is willing to conduct a 
serious and objective investigation by considering two factors: 
one, whether they will hold Administration officials 
responsible; and, two, whether the investigation is completed 
before the general election. Otherwise, the American people 
rightly can conclude that the Administration is hiding the 
truth and has endangered American security and American lives.
    Mr. Chairman, finally, I want to say that the 
Administration's track record is not encouraging. It was 
pointed out by the Ranking Member of the Subcommittee a minute 
ago that the Administration has, in fact, initiated a number of 
investigations of leaks, but very little, if anything, has 
coming out of those investigations. I hope this time it will be 
different.
    Thank you, Mr. Chairman. I yield back.
    Mr. Sensenbrenner. The Ranking Member of the full 
Committee, the distinguished gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Thank you, Chairman Sensenbrenner.
    And good morning to our witnesses.
    This is a difficult matter, national security leaks and the 
law. My good friend from Texas, the Chair of this full 
Committee, wonders if self-promotion played a role and if there 
were prominent members of the Administration involved in the 
leaks. Well, that is what we are here to try to determine. He 
hasn't mentioned any names, so I presume he is not sure who is 
doing it. We have our own investigative capacity, and so why 
don't we inquire ourselves?
    We also have the regular power of subpoena. If there is 
somebody he thinks we ought to talk to, we should talk to them. 
If there is somebody that isn't cooperating with us in this 
investigation, which is a legitimate subject for discussion, we 
should subpoena them.
    Mr. Smith. If the gentleman will yield, I will take the 
gentleman up on his offer immediately. And I suspect the 
Chairman of the Subcommittee will, as well. If you are going to 
support our efforts to subpoena individuals from the 
Administration, I couldn't ask for more.
    Mr. Conyers. Well, that is why I am suggesting it.
    Mr. Sensenbrenner. If the gentleman will yield, if he will 
submit to the Subcommittee Chair a list of people that he 
wishes subpoenaed and the full Committee Chair does the same, I 
think we can have a good, bipartisan subpoena-issuing session.
    Mr. Conyers. Yeah, but the only problem is that, at this 
point, neither of you have anybody that you want to subpoena, I 
presume, and neither do I.
    Mr. Smith. Oh, I will be happy to come up with some names.
    Mr. Conyers. Well, okay. Well, that is great. You know, we 
could have had this discussion before 10 a.m. on the 11th day 
of July. But right now this hearing is going on without anybody 
knowing who they would like to talk with. And now we have all 
agreed to pull together three bipartisan lists. I am very sure 
the former attorney general from California, who is a Member of 
the Committee, he could easily come up with a list.
    Mr. Lungren. I will give you some right now, if you would 
like to. How about all the people that were in the Situation 
Room----
    Mr. Conyers. Wait a minute. I didn't yield.
    Mr. Lungren [continuing]. Identified by The New York Times?
    Mr. Conyers. Just a moment, sir.
    Mr. Sensenbrenner. The time belongs to the gentleman from 
Michigan.
    Mr. Conyers. Yeah.
    We can get you time.
    I am not here requesting names. I am here pointing out that 
we don't, apparently, have any names. Now, all of a sudden, we 
have a bipartisan panel, everybody is willing to produce names. 
And, by the way, I didn't say that I had any names myself. You 
are the ones running the Committee and saying that this is an 
important subject. And I agree with you. But I just want to 
describe the nature of the setting as this starts out with.
    Now, let me point out just a couple things. We must react 
to concerns about leaks in ways that do not undermine the 
openness and transparency of government. I think we can start 
off there as a beginning point. I think I would like to hear 
some discussion about the issue of overclassification of 
documents in the Federal Government. I think that is worth our 
attention.
    And then, a law passed in 1917 needs to be looked at again. 
What went on as espionage in the early part of the 20th century 
I don't think has much relevance now. And I think there is a 
lot of work for the Committee on the Judiciary and this 
Subcommittee in particular to work on.
    Mr. Sensenbrenner. The gentleman's time has expired, and, 
without objection, he is given 2 additional minutes.
    Mr. Conyers. Well, I thank you, Chairman Sensenbrenner. And 
I won't use the 2 minutes.
    But I will just conclude by saying, when we look at the 
issue of leaks, let's look at them across a period of time that 
includes all the former as well as the current Administration.
    And I thank you for your generosity, and I return the 
balance of the time. Thank you very much.
    Mr. Sensenbrenner. Thank you.
    Without objection, all Members' opening statements will 
appear in the record at this point.
    [The prepared statement of Mr. Sensenbrenner follows:]
  Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a 
 Representative in Congress from the State of Wisconsin, and Chairman, 
        Subcommittee on Crime, Terrorism, and Homeland Security
    Within the last few months, the American people, and the rest of 
the world, have become privy to an astonishing number of revelations 
concerning the secret operations of our armed forces and national 
intelligence agencies. We have learned that a Pakistani doctor 
cooperated with U.S. forces in conducting DNA tests to help locate 
Osama Bin Laden. We have learned that the President of the United 
States personally decides the human targets of drone strikes in other 
countries, by looking at mug shots and brief biographies of targets 
that, we have been told, ``resembled a high school yearbook layout.''
    We have learned that the United States, in cooperation with its 
ally, Israel, sabotaged the Iranian nuclear campaign with the Stuxnet 
virus. We have learned that Obama expanded the assault even after the 
virus accidentally made its way onto the Internet in 2010. We have 
learned that the United States sabotaged Iranian computers with the 
``Flame'' virus.
    We have learned that the CIA takedown of an Al Qaeda plot to blow 
up a U.S.-bound airliner involved an international sting operation with 
a double agent tricking terrorists into handing over a prized 
possession: a new bomb purportedly designed to slip through airport 
security. We have also learned that the double-agent belonged to 
another ally, Saudi Arabia.
    We didn't learn of these secret programs and details through spies, 
or other countries' diplomats, or even from the Wikileaks scandal. The 
world learned of these secrets from the pages of the New York Times and 
other U.S. newspapers.
    The editors of the New York Times, and other newspapers, have 
publicly claimed many times that they see themselves as having a duty 
to inform. During the Bush Administration, the New York Times and other 
newspapers savaged President Bush and the intelligence community for 
its tactics in the War on Terror.
    How times have changed. Here is a sample of the headlines that 
accompanied these latest national security leaks:

          ``Obama Order Sped Up Wave of Cyberattacks Against 
        Iran''--NY Times

          ``Secret `Kill List' Proves a Test of Obama's 
        Principles and Will''--NY Times

          ``Stuxnet was work of U.S. and Israeli experts, 
        officials say''--Washington Post

    These are not the type of critical headlines that pursued Bush 
Administration officials. Not only has the Administration not 
complained about these articles, but officials made ``a planner, 
operator and commander of SEAL Team Six'' who killed Osama bin Laden 
available to a Hollywood director and screenwriter working on a movie 
about the successful raid, according to Pentagon and CIA records 
obtained by Judicial Watch, who got the information through FOIA 
requests.
    The four leaders of the Intelligence Committees have condemned 
these leaks. Senator Dianne Feinstein said that she was deeply 
disturbed by these leaks, and wants an investigation. I agree.
    The Attorney General has deployed two U.S. Attorneys, who report to 
him, to investigate the leaks and to determine whether anyone from the 
Administration should be prosecuted. Today, we will take a look at the 
law and discuss the options available for investigating these 
disclosures to the press.
    These leaks threaten our national security, our relations with 
foreign governments, and continued candor from embassy officials and 
foreign sources. They have already had profound consequences. The 
doctor who cooperated with us was sentenced to 30 years in prison by 
Pakistani authorities. Intelligence sources have told us that the 
Saudi-Arabian double-agent was exposed because of news reports.
    As long as there have been governments, there has been information 
protected by those governments. This country needs its secrets kept, 
regardless if the news media wants to expose them to condemn a 
president, or to praise him.
    This isn't simply about keeping government's secrets secret. This 
is about the safety of American personnel overseas at all levels, from 
the foot soldier to the Commander-in-Chief.
                               __________

    [The prepared statement of Mr. Scott follows:]
   Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and Ranking 
    Member, Subcommittee on Crime, Terrorism, and Homeland Security
    Today, we will examine issues related to the leaks of classified 
information. This hearing is motivated, in no small part, by a recent 
spate of stories in the news that appear to have their basis in 
information leaked from within the federal government. These stories 
include details of cyberwarfare in Iran, a covert mission to thwart a 
suicide bomber bound for the United States, and the Administration's 
process of nominating individuals as targets for drone strikes in Yemen 
and Pakistan.
    Although these stories may have given some members a renewed sense 
of urgency, it is important to put the problem into context. There are 
two points to make here.
    First, the Obama Administration's work to investigate and prosecute 
suspected leaks is without peer. This Administration has prosecuted 
more leaks than all previous presidential administrations combined. 
Attorney General Eric Holder has appointed two U.S. attorneys to lead 
the federal investigations into the recent leaks. Director of National 
Intelligence James Clapper has issued new rules to deter future 
incidents--among them, rules authorizing the Inspector General of the 
Intelligence Community to conduct an independent administrative 
investigation even if the Justice Department declines to bring criminal 
charges in a specific case.
    Second, the problem of leaks in the federal government is not new. 
There were spies at the founding of the Republic. We have grappled with 
this problem in federal law since the First World War and, in the 
modern sense of ``leaking'' information to the press, we have worked to 
balance our security with the interests of a free and robust press for 
the better part of 50 years.
    These problems are not amenable to an easy solution, particularly 
because we do not always agree on the scope of the problem. We all want 
to protect national security so that we can keep our citizens safe. But 
we cannot disregard the right of American citizens to a system of self-
governance--a system that requires the public to be well-informed.
    When a government official leaks classified information to the 
press that reveals the government is engaged in unlawful activity, are 
we to simply leave it up to that same government's discretion whether 
to prosecute that person for possibly serving the public's interest?
    What about leaks of information that do not implicate any national 
security interests at all? Over-classification is an enormous problem 
in the federal government, and current law does not distinguish between 
leaking classified information with an intent to harm the United 
States, and blowing the whistle on unlawful activity that never should 
have been classified in the first place.
    Congress may soon consider legislation that attempts to address 
these shortcomings in existing law. As we move forward, we must be 
careful. Any decision to limit what public officials and private 
citizens may say about the government must be balanced against 
important issues of free speech and due process. Just as the authors of 
the Espionage Act of 1917 did not anticipate our problems with leaks of 
digital information to a national press, there may be unforeseen 
consequences to any changes we make today.
    It is easy to overreact to a news story, particularly in an 
election year--but we must be careful before we limit what people say, 
particularly with respect to the operation of our government.
                               __________

    [The prepared statement of Mr. Smith follows:]
 Prepared Statement of the Honorable Lamar Smith, a Representative in 
   Congress from the State of Texas, and Chairman, Committee on the 
                               Judiciary
    Recent leaks of highly classified information pose a serious threat 
to our national security and put the lives of Americans and our allies 
at risk. National security experts from both Republican and Democratic 
administrations have expressed outrage over the leaks and the effect 
they have on ongoing and future intelligence operations.
    What sets these leaks apart from other leaks we have seen is that 
the media reports that many of these have come from highly-placed 
Administration sources. If true, this means that Administration 
officials are weakening our national security and endangering American 
lives.
    National security operational details exist to meet the covert 
needs of the intelligence community that protects the American people.
    As FBI Director Mueller recently testified: ``. . . leaks such as 
this threaten ongoing operations, puts at risk the lives of sources. 
Makes it much more difficult to recruit sources and damages our 
relationships with our foreign partners. And consequently a leak like 
this is taken exceptionally seriously and we will investigate 
thoroughly.''
    Director Mueller went on to say ``I don't want to use the word 
devastating, but [this will] have a huge impact on our ability to do 
our business . . . your ability to recruit sources is severely hampered 
. . . So it also has some long-term effects, which is why it is so 
important to make certain that the persons who are responsible for the 
leak are brought to justice.''
    News publications that publicize classified information claim to 
promote increased government transparency. But I wonder if their real 
motivation is self-promotion and increased circulation.
    They claim to be in pursuit of uncovering government wrongdoing but 
dismiss any criticism that their actions may be wrong or damaging to 
the country.
    These leaks have also resurrected debate on First Amendment 
protections afforded to media publications. What are the boundaries of 
free speech? How do we balance this freedom with the government's need 
to protect certain information?
    I hope the Justice Department will bring the full force of the law 
against those who leaked protected information.
    We can judge whether the Administration is willing to conduct a 
serious and objective investigation by considering two factors: (1) 
whether they will hold Administration officials responsible, and (2) 
whether the investigation is completed before the general election.
    Otherwise, the American people rightly can conclude that the 
Administration is hiding the truth and has endangered American security 
and American lives.
                               __________

    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, Ranking Member, Committee on 
      the Judiciary, and Member, Subcommittee on the Constitution
    As we examine the question of national security leaks and the law 
in today's hearing, we should keep in mind several considerations about 
historical context, high-profile leaks, and the ways in which we 
respond to them as a policy matter.
    Leaks of sensitive information by officials in the federal 
government have taken place since the founding of the Republic. Within 
any system of government, there are officials who are motivated by 
varying considerations to disclose inside information. Concerns about 
leaks are not new.
    In our system of government, the people have a right to know what 
their government is doing and why. Public oversight gives the 
government powerful incentive to act effectively, responsively and 
lawfully.
    On the other hand, the people also have an expectation that the 
government will protect our national security. In order to keep the 
country safe, the government must have the ability to deliberate with 
an appropriate degree of confidentiality.
    In reacting to national security leaks, we must be careful not to 
tip the balance between these two competing interests. If we overreact, 
we risk reaching a point where so much of our government is shrouded 
with secrecy that our citizens cannot effectively know what is being 
done in their name.
    Similarly, when we consider whether to change our laws to better 
protect the government from national security leaks, we must take care 
with respect the disclosure of information that never should have been 
classified in the first place.
    I think most of us would readily acknowledge that our government 
has a problem with overclassification. Some government officials have 
themselves suggested that about half of all classified information is 
unnecessarily classified. If we are to seriously consider taking a 
stronger stand against leaks, we must carefully distinguish between 
information that is classified in order to protect national security 
and information that is classified for other reasons, such as to 
protect someone from embarrassment or legal scrutiny, or simply because 
it is easier to make information secret than to share it with the 
public.
    Finally, I want to note for the record that the Obama 
Administration has already prosecuted more leak-related cases than were 
brought under all previous presidents combined. There can be no doubt 
that President Obama and Attorney General Eric Holder take national 
security and national security leaks as seriously as possible.
    In addition, the Director of National Intelligence has announced 
that the intelligence community will implement new rules to deter 
future leaks--requiring additional polygraph tests for staff, and 
giving the Inspector General of the Intelligence Community new powers 
to launch an independent investigation.
    These steps seem to me a measured, appropriate response to recent 
events. Congress must exercise similar discretion as it moves to handle 
national security leaks in the future.
                               __________

    Mr. Sensenbrenner. And, without objection, the Chair is 
authorized to declare recesses during votes on the House floor.
    It is now my pleasure to introduce today's witnesses.
    Ken Wainstein is a partner in the law firm of Cadwalader, 
Wickersham & Taft, where his practice focuses on corporate 
internal investigations. He is also an adjunct professor at 
Georgetown Law School. Mr. Wainstein served as an assistant 
U.S. attorney in both the Southern District of New York and in 
the District of Columbia. Later, he served as the U.S. attorney 
in D.C. and then was Assistant Attorney General for National 
Security. He served as FBI Director Robert S. Mueller's chief 
of staff and then as President George W. Bush's homeland 
security advisor. He received his undergraduate degree from the 
University of Virginia and his law degree from the University 
of California at Berkeley.
    Mr. Nathan Sales is an assistant professor of law at the 
George Mason University School of Law. Before coming to George 
Mason, Sales was Deputy Assistant Secretary for Policy 
Development in the U.S. Department of Homeland Security. He 
previously served as counsel and senior counsel in the Office 
of Legal Policy at the U.S. Department of Justice. He was the 
John M. Olin Fellow at Georgetown University Law Center in 2005 
and 2006. From 2003 through 2005, he practiced at the 
Washington, D.C., law firm of Wiley, Rein, and Fielding. 
Professor Sales clerked for the Honorable David B. Sentelle of 
the U.S. Court of Appeals for the D.C. Circuit. He received his 
undergraduate degree from Miami University and his J.D. from 
Duke.
    Colonel Ken Allard is a commentator on foreign policy and 
security issues. For more than a decade, he was a featured 
military analyst on NBC News, MSNBC, and CNBC. In 2006, he 
joined the faculty at the University of Texas, San Antonio, as 
an executive in residence and senior lecturer in management. 
His military career included overseas service as an 
intelligence officer as well as tours of duty as an assistant 
professor at West Point, special assistant to the Army chief of 
staff, and dean of students at the National War College. He 
received his undergraduate degree from Lycoming College, his 
MPA from Harvard, and his Ph.D. In international security from 
the Fletcher School of Law and Diplomacy at Tufts.
    Professor Stephen Vladeck is a professor of law and the 
associate dean for scholarship at American University 
Washington College of Law. He is also a Supreme Court fellow at 
The Constitution Project. He is the senior editor of the peer-
reviewed Journal of National Security Law and Policy, a senior 
contributor to the Lawfare blog, and a member of the Executive 
Committee of the Section on Federal Courts of the Association 
of American Law Schools. Previously, he was an associate 
professor of law at the University of Miami School of Law. 
Professor Vladeck clerked for the Honorable Marsha S. Berzon on 
the U.S. Court of Appeals for the Ninth Circuit and the 
Honorable Rosemary Barkett on the U.S. Court of Appeals for the 
11th Circuit. He received his bachelor of arts from Amherst and 
his J.D. from Yale Law School.
    The witnesses' full statements will be entered into the 
record in their entirety, so I ask that each of you summarize 
in 5 minutes or less. And to help you stay within the time 
limit, there is a timing light on your table. And you all know 
what that means.
    So I now recognize Mr. Wainstein.

    TESTIMONY OF KENNETH L. WAINSTEIN, PARTNER, CADWALADER, 
                     WICKERSHAM & TAFT LLP

    Mr. Wainstein. Chairman Sensenbrenner, Ranking Member 
Scott, Chairman Smith, Ranking Member Conyers, and 
distinguished Members of the Subcommittee, it is an honor to 
appear before you today and to testify alongside my 
distinguished copanelists.
    I spent much of my government career in the national 
security world, where I saw the vital role that sensitive 
information plays in our national security operations and how 
those operations can be put in jeopardy whenever that 
information is compromised.
    The problem of national security leaking has come to the 
fore recently because of several particularly damaging leaks 
over the last few months. While these recent leaks are 
alarming, the reality is that government leaking has been 
happening for as long as government has existed, and every 
American administration since the founding of the Republic has 
suffered its share of leaks.
    Leaks of national security information can compromise all 
aspects of our national security program. They can compromise 
specific national security operations, as happened in 2006 with 
the disclosure of the Treasury Department's secret program for 
tracking terrorist finances. They can compromise human sources, 
as apparently happened when it was recently reported that a 
Saudi source had helped to foil al Qaeda's recent airplane 
bombing plot. And keep in mind that whenever a source's 
identity or existence is leaked, it not only negates the 
effectiveness of that particular source, it also undermines our 
ability to develop and cultivate sources in the future.
    Leaks can also compromise our methods, as apparently 
happened with the recent disclosure of our alleged use of 
malware to attack the Iranian nuclear weapons program. They can 
certainly endanger our government personnel, like the CIA chief 
of station who was publicly outed and then killed by terrorists 
in Athens in the 1970's. And, importantly, they can weaken our 
alliances, those operational relationships between us and 
foreign services that are so vital to our national security 
operations around the world.
    In short, leaks can be severely damaging to our efforts to 
protect our country.
    Now, there is a wide range of different types of leaks, but 
the most common scenario these days is the leak of sensitive 
information to the press by a government official, an official 
whose motivation may range from base self-interest to a 
laudable desire to blow the whistle on wrongdoing and change 
government operations for the better.
    I share Congress' concern about the need to enhance our 
defenses against such illicit disclosures. An important part of 
that effort is ensuring that in the appropriate cases we 
investigate and we prosecute those who disclose our operational 
secrets. As you know, however, the Justice Department does not 
have a lengthy record of successful leak prosecutions. That 
thin track record is not for a lack of trying, however. Rather, 
it is the result of myriad obstacles that stand in the way of 
building a prosecutable media leak case.
    Those obstacles are many, and they include the following: 
First, it is very difficult often to identify the leaker in the 
first place, given the large universe of people who are often 
privy to the sensitive information that gets disclosed. Second, 
our leak investigations operate under strict limitations in the 
Justice Department's internal regulations--limitations that are 
in place for all the right First Amendment reasons. And, 
finally, even when investigators can get by those challenges 
and the leaks are identified, the agency whose information was 
compromised is often reluctant to proceed with a prosecution 
out of fear that trying the case in public will both highlight 
the compromised information and disclose further sensitive 
information that it wants to keep confidential.
    For all these reasons, leak investigations and leak cases 
are exceptionally challenging, and the question is whether any 
of these obstacles can or should be addressed by changes to the 
governing legislation. I agree with those who say that our 
current espionage statues are cumbersome and antiquated, and I 
would support Congress' effort to reform them. Keep in mind, 
however, that this reform effort will be very complicated. 
Because it directly implicates the tension between national 
security and our cherished First Amendment values, legislating 
in this area is challenging and inevitably raises a host of 
complex issues.
    For example, consideration of a law that would flatly 
prohibit and punish any disclosure of classified information 
will require examination of the problem of overclassification 
of government information. Also, any effort to revise the 
Espionage Act will lead to a debate whether the person who 
receives and publishes leaked information, i.e., the press, 
should be subject to the same criminal exposure as the 
government official who leaked it in the first place.
    These are certainly complex issues. Given the damage caused 
by the continued leaks and the inadequacy of our current leak 
legislation, however, it is important that Congress take these 
issues on and consider an appropriate legislative response.
    No matter where one stands on the political spectrum, we 
should all recognize that the unchecked leaking of classified 
and sensitive information can cause grave harm to our national 
security. Congress plays an important role in addressing that 
problem, 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 questions you may have. Thank 
you, Mr. Chairman.
    Mr. Sensenbrenner. Thank you.
    [The prepared statement of Mr. Wainstein follows:]
         Prepared Statement of Kenneth L. Wainstein, Partner, 
                   Cadwalader, Wickersham & Taft LLP
    Chairman Sensenbrenner, Ranking Member Scott and distinguished 
Members of the Subcommittee, thank you for inviting me to testify 
before you today about the issue of national security leaks.
    My name is Ken Wainstein, and I am a partner at the law firm of 
Cadwalader, Wickersham & Taft. Prior to my leaving the government in 
January of 2009, I was honored to work for many years with the men and 
women of the Intelligence Community and others who defend our national 
security against our adversaries. I am also honored to appear today 
alongside my co-panelists, who bring a wealth of experience to a 
discussion of this critically important issue.
    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 the lifeblood of our national security 
operations. Whether it was source information that factored into 
decision making at the White House or intelligence from a wiretap we 
secured at the Justice Department, I have seen the vital 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, that information is compromised all too 
frequently.
    The problem of national security leaking has come to the fore 
recently because of several particularly damaging leaks over the past 
few months. While these leaks are alarming, they are sadly only the 
most recent manifestations of an age-old problem. The reality is that 
government leaking has been happening for as long as there has been 
government, and every American administration since the founding of the 
Republic has suffered its share of leaks.
    While some leaks may be innocuous or simply embarrassing, others 
can be severely damaging to our national security. Leaks of national 
security information can compromise all aspects of our national 
security program, including:

          National security operations: From the 1942 newspaper 
        report that the U.S. had broken the Japanese military code to 
        the 2006 disclosure of the Treasury Department's secret program 
        for tracking terrorist finances, we have repeatedly seen vital 
        operations put in jeopardy by careless or malicious leaks.

          Human sources: A key element of any intelligence 
        program is the source--the human being who is positioned to 
        provide intelligence on an adversary and its plans and 
        intentions. Whenever a source's identity is leaked from the 
        government--as apparently happened when it was reported that a 
        Saudi source had played a central role in the foiling of Al 
        Qaeda's recent airplane-bombing plot--it not only negates the 
        effectiveness of that source; it also undermines our ability to 
        develop other sources.

          Methods: Leaks about our methods tip our hand to our 
        adversaries and give them the opportunity to adapt their 
        defenses against those methods. A classic example is the recent 
        disclosure of our alleged use of malware to attack the Iranian 
        nuclear weapons program.

          Government personnel: Obviously, leaks can also prove 
        dangerous or fatal to our personnel in sensitive positions, as 
        was tragically demonstrated by the murder of the CIA's Chief of 
        Station in Athens by terrorists in the 1970's after his outing 
        by a former CIA employee.

          Alliances: Leaks from within our government can 
        undermine those relationships with foreign services that are so 
        vital to our national security, especially in relation to our 
        effort against international terrorists.

          The integrity of government service: Finally, it's 
        worth noting that government employees with clearances give a 
        personal promise that they will protect the government's 
        classified information. The integrity of public service is 
        diminished whenever that promise is broken.

    In assessing why leaks happen and what should be done to prevent 
them, we have to examine the reasons why people leak in the first 
place. While there are a range of motives behind different leaks and 
leakers, I will put those motives into two general categories for 
discussion. The first category includes those instances where a 
government official passes sensitive information to a foreign 
government or other foreign power--the classic espionage scenario with 
spies like Aldrich Ames or Robert Hanssen who betray their country for 
money, out of resentment against their government or agency, or out of 
misplaced loyalty or affinity for another country. We all condemn the 
traitorous actions of these classic spies, and the Justice Department 
has mounted strong prosecution efforts whenever such spies have been 
identified over the years.
    The second, and more common, scenario is the leak of sensitive 
information to the press by a government official whose motive may 
range from base self-interest to a laudable whistleblower's desire to 
change government operations for the better. While I appreciate that 
some of those responsible for media leaks--i.e. the 
``whistleblowers''--may genuinely feel they are acting in the country's 
best interests, I share the concern expressed by many in Congress about 
the need to enhance our defenses against such disclosures. An important 
part of that effort is ensuring that, in the appropriate cases, we 
investigate and prosecute those who disclose our operational secrets.
    As you know, however, the Justice Department does not have a 
lengthy record of successful leak prosecutions. While it has brought 
many strong espionage cases over the years, there have been very few 
prosecutions for leaks to the media.
    That thin track record is not for lack of effort on the part of the 
investigators and prosecutors. Rather, it is a result of the myriad 
obstacles that stand in the way of building a prosecutable media leak 
case. Those obstacles are many, and they include the following:
    First, it is often very difficult to identify the leaker, given the 
large universe of people who often are privy to the sensitive 
information that was disclosed. It is not uncommon for many people to 
be read into the most highly-classified program or to be recipients of 
intelligence derived therefrom--a problem which has only gotten worse 
with the increased integration and information-sharing we have seen in 
the intelligence and law enforcement communities since the 9/11 
attacks.
    Second, our leak investigations operate under the limitations in 
the Justice Department's internal regulations, which make it difficult 
to obtain information from the one party who is in the best position to 
identify the leaker--the member of the media who received the leaked 
information. These regulations have been in place for years, and serve 
as a procedural bulwark protecting the vital role of the free press in 
our democracy. These regulations ensure that ``the prosecutorial power 
of the Government [is] not . . . used in such a way that it impairs a 
reporter's responsibility to cover as broadly as possible controversial 
public issues.'' United States Attorneys' Manual, Section 9-13.400. The 
upshot is, however, that an investigator who wants to use a subpoena to 
compel information from a reporter can do so only after the Attorney 
General personally grants his or her permission--a process that has 
resulted in only about two or three dozen subpoenas to the press for 
source information over the past couple decades.
    Third, even when the leaker is identified, the agency whose 
information was compromised is often reluctant to proceed with the 
prosecution. The concern is that charging and trying the case will both 
highlight the compromised information and likely result in the 
disclosure of further sensitive information that may come within the 
ambit of criminal discovery or admissible evidence. While the 
Classified Information Procedures Act helps to address this problem, 
there is always a concern about disclosure when a national security 
crime is prosecuted and brought to a public trial.
    Finally, even if the Justice Department succeeds in identifying and 
indicting the suspected leaker, it can expect to face a vigorous 
defense. These cases typically feature legal challenges from defense 
counsel invoking everything from First Amendment principles to 
allegations of improper classification to arguments that their client's 
alleged leak was actually an authorized disclosure within the scope of 
his or her official duties. The Rosen and Weissman case that was 
dismissed after years of litigation is an example of the difficult 
issues that these cases present.
    For all these reasons, leak cases are exceptionally challenging, 
and successful prosecutions are few and far between. The question for 
Congress is whether any of these obstacles can or should be addressed 
by changes to the governing legislation. I agree with those who find 
the current espionage statutes cumbersome and antiquated in their 
approach and terminology, and I would support Congress' effort to 
reform them.
    This reform effort will be complicated, and will entail some very 
carefully calibrated lawmaking. Because it directly implicates the 
tension between national security and our First Amendment values, 
legislating in this area is challenging and raises a host of complex 
issues. For example, consideration of a law that flatly prohibits and 
punishes any disclosure of classified information will require 
examination of the problem of over-classification of government 
information. Similarly, the strengthening of legislation targeting 
government leakers may require an examination of the whistleblower 
protection acts to ensure that true whistleblowers can get their 
concerns raised and addressed without going to the press. Finally, any 
effort to revise the Espionage Act will lead to a debate whether the 
person who receives and publishes leaked information (i.e. the press) 
should be subject to the same criminal exposure as the government 
employee who committed the leak.
    These are certainly complex issues, and they will require careful 
consideration. Given the damage caused by the continued leaks and the 
inadequacy of our current leak legislation, however, it is important 
that Congress take these issues on and consider an appropriate 
legislative response.
          * * * * *
    No matter where one stands on the political spectrum or in the 
current national security policy debates, we should all recognize that 
the unchecked leaking of sensitive information can cause grave harm to 
our national security. Congress plays an important role in addressing 
that problem, and I applaud this 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 questions you many have.
                               __________

    Mr. Sensenbrenner. Professor Sales?

   TESTIMONY OF NATHAN A. SALES, ASSISTANT PROFESSOR OF LAW, 
                    GEORGE MASON UNIVERSITY

    Mr. Sales. Thank you. Chairman Sensenbrenner, Ranking 
Member Scott, Chairman Smith, Ranking Member Conyers, and other 
Members of the Subcommittee, thank you all for inviting me here 
to testify. It is a pleasure to appear before you again.
    I would like to use my testimony to outline some of the 
legal tools the government has available to combat leaks. 
First, Federal courts have held that it is a crime under the 
Espionage Act for officials to leak classified information to 
the press. Second, officials frequently sign secrecy agreements 
when they go to work for the government, and the Supreme Court 
has held that these secrecy contracts are enforceable.
    Now, these tools are useful, but they are not perfect. As 
we have already heard, the Espionage Act in particular is 
notoriously vague, and Congress might want to consider amending 
it.
    So let me go into more detail, starting with criminal 
prosecutions. The basic thrust of the Espionage Act is fairly 
straightforward. It is a crime for officials to, quote, 
``reveal information relating to the national defense to any 
person not entitled to receive it.'' Now, this law, as the name 
implies, quite plainly applies to spies who give secrets to 
foreign governments. The courts have held that it also applies 
when officials give secrets to the press.
    The leading case is United States v. Morrison. Morrison was 
a naval intelligence officer, and he was convicted of violating 
the Espionage Act after he gave classified military photographs 
to a British magazine in 1984. The Fourth Circuit affirmed his 
conviction, squarely holding that the law applies to leakers, 
not just to spies. The reason leakers can be prosecuted, said 
the court, is because of the plain language of the statute. The 
Espionage Act doesn't refer narrowly to spies; it speaks in 
broad and comprehensive terms. Nor does it contain any 
exception for leaks to the press. The court also emphasized the 
statute's purposes. Congress' goal in 1917 was to prevent 
secrets from falling into the wrong hands. That harm 
materializes regardless of whether our enemies get their 
secrets directly from spies or indirectly by reading about it 
in the newspaper. What about the Constitution? The Fourth 
Circuit rejected the notion that Morrison had a First Amendment 
right to leak. To hold otherwise, quote, ``would be to 
prostitute the salutary purposes of the First Amendment.''
    Morrison is such an important precedent because it stands 
relatively alone. There simply aren't that many cases applying 
the Espionage Act to leakers. To this day, Morrison remains the 
only person ever convicted of leaking classified information to 
the press, though several others have pled guilty to similar 
charges. In fact, over the 100-year lifespan of the Espionage 
Act, the government has only brought charges against leakers 
nine times. Six of those prosecutions have come since President 
Obama took office in 2009.
    Next, I would like to discuss a lesser-known but still 
important tool for combating leaks: contract law. Sometimes the 
government will get advance notice that an employee or former 
employee intends to leak classified information. That isn't 
just a potential crime; it is also a potential breach of 
contract. This is so because intelligence officials typically 
sign secrecy agreements as a condition of access to classified 
information. The government can go to court to have these 
contractual obligations enforced.
    Indeed, the Supreme Court and the Fourth Circuit have both 
upheld these sorts of secrecy agreements. The two cases, known 
as Snepp and Marchetti, each involved a former CIA official who 
wanted to publish a book about his time working at the agency. 
Again, the First Amendment is not an obstacle. According to the 
Supreme Court, the government's interest in preventing leaks is 
so strong, it can restrict officials from revealing classified 
information even without an express contractual requirement to 
that effect.
    Finally, let me spend a couple seconds talking about how 
these laws might be improved. It is no secret that some of the 
key terms in the Espionage Act are ambiguous. Just what does 
``information relating to the national defense'' mean anyway? 
And who specifically is a ``person not entitled to receive 
it''? Judges and academics have been hoping that Congress would 
resolve these and other interpretive mysteries for more than a 
decade.
    There is another problem with the act. The Espionage Act 
makes it a crime to leak information relating to the national 
defense, as opposed to classified information or properly 
classified information. As a result, the statute has the 
potential to produce both false positives and false negatives. 
In other words, the law might criminalize some leaks that 
aren't really harmful, and it might fail to criminalize other 
leaks that are harmful.
    Here is an example of the false negatives problem, which is 
probably more severe. Imagine what would happen if somebody 
leaked the U.S. negotiating strategy for ongoing talks over a 
free trade agreement. That information almost certainly doesn't 
relate to the national defense but might nevertheless be 
properly classified. Because it doesn't fall within the four 
corners of the Espionage Act, it might not be unlawful even 
though such a leak would cause exceptionally grave harm.
    Congress ought to consider, and indeed Congress has in the 
past considered, either tweaking the Espionage Act to resolve 
these ambiguities or perhaps to enact an entirely new statute.
    Mr. Chairman, thank you again for your time. I would be 
happy to answer any questions.
    Mr. Sensenbrenner. Thank you very much.
    [The prepared statement of Mr. Sales follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
                               __________

    Mr. Sensenbrenner. Let me say that the yellow and red 
lights don't seem to be working, so I will help the witnesses 
wrap up.
    And thank you, Professor. You wrapped up without any help.
    Colonel Allard?

     TESTIMONY OF COLONEL KENNETH ALLARD, U.S. ARMY (RET.)

    Colonel Allard. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. Could you please pull the mike a little 
bit closer to you and make sure it is turned on?
    Colonel Allard. Thank you, Mr. Chairman. I appreciate your 
invitation, and also the Members of the Committee.
    Mr. Chairman, on my way here, I had the occasion to stop at 
Midway Airport. And there at Midway Airport they have dedicated 
a certain portion of the terminal to a memorial to Midway. Very 
appropriate. But while there, there is a great quote from 
Admiral Nimitz, who we in Texas are very, very proud of because 
he was the hero of the Battle of Midway. And what he said on 
that memorial I think is very, very important for us today. He 
looked back at the naval intelligence apparatus at Midway, and 
he said, the fate of the Nation quite literally depended on a 
few dozen men who have devoted their lives and their whole 
careers in peace and war to radio intelligence. That 
intelligence gave us the edge at Midway. It literally meant the 
difference between life and death and victory and defeat.
    The topic which concerns us today is equally vital. The 
reason being, what has just happened is in my lifetime 
unprecedented. I mean, we all have seen leaks. I have been 
around government for the better part of 30 years. If you see 
government, you see leaks. Everyone understands this. And, by 
the way, it is equally bipartisan and occurs at every level, 
every Administration. No one is exempt.
    And so if you try to amend the Espionage Act, you have to 
be very, very careful. But I very much associate myself with 
the idea of being extremely reluctant to mess with the law. I 
think what you must do first is look back at the original 
consensus, going back all the way to Philadelphia, between 
freedom and responsibility, particularly, the obligation of 
those who are being defended to make sure those secrets are 
intact.
    What really concerns me today is that we have seen, as I 
said, something I had never thought I would ever see in my 
lifetime. When the Sanger articles began to appear, when his 
book appeared, I never thought I would see those revelations 
ever being discussed in the open press. The reason: When you 
commit industrial espionage against a sovereign power, ladies 
and gentlemen, that is, by definition, an act of war, pure and 
simple. The key thing about intelligence, as Admiral Nimitz 
said, is that it removes ambiguity. When ambiguity in 
intelligence removed, armies march and navies sail. That is 
what has just happened.
    With Iran, the Islamic Republic of Iran, they have links to 
terror that other people here are much more expert in than I 
am. But on this very Hill 2 days ago, you heard testimony from 
General Keith Alexander. General Alexander happens to have been 
my student at the National War College. What he said was, ``We 
are extremely vulnerable to any form of terrorism by virtue of 
cyber means.'' So when you do the same cyber means yourself, 
you can understand how it is sort of--people in a glass houses 
should not throw stones. That is what just happened here. And 
when you look at that, it should bring the Committee up very 
short, because you know what? You have the responsibility of 
looking at the Espionage Act and thinking, can we do anything 
better with this?
    I have great respect for what this Congress can do in terms 
of investigation. I have been here as a congressional fellow 
myself. Mr. Smith, I do not normally admit that back in Texas. 
But it is true, I was in these halls for two occasions. One was 
Goldwater-Nichols; the second was the Federal Acquisition 
Streamlining Act of 1994. Both those acts were landmark 
legislation. They were both accompanied by a great degree of 
rigor, intellectual, every other way, analytical, to make sure 
the laws were being looked at, were being analyzed correctly.
    With Goldwater-Nichols, defense organization was the oldest 
game in this town. It was looked at time and again, and finally 
people said, we need to address this law, here is why. With the 
Acquisition Streamlining Act, we looked at 800 laws and said, 
here is how defense procurement can be improved, here is how 
and why, statute by statute. That was done. By the way, that 
statute that was passed in 1994 is still the leading statute 
for defense procurement today.
    So there is every means and every, I think, incentive for 
this Committee to look very carefully at the Espionage Act. Mr. 
Conyers, you are absolutely correct, sir. It was passed during 
the industrial age. We are now in an information age. What do 
you do when you have open source intelligence?
    I defended the Constitution with my life for over 25 years. 
For the last 15, I have been making a living from it, first on 
NBC News and now doing some writing on my own. And I will tell 
you, I have never seen anything remotely like this, where 
suddenly you have the access to information that you have. And 
so you have to sit here and make sense of all this and say, you 
know what? I have only been--one of the statutes we looked at 
in the 1994 legislation was whistleblowing. And guess what? 
That is extremely important to do now, as well.
    The last thing I would say to you is, you all said, be very 
careful about the institutions doing this, because in the case 
of The New York Times, I will tell you right now from personal 
experience, they abuse their position. We see it time and 
again. What Mr. Sanger did was--I used to work against the KGB, 
okay? What Mr. Sanger did was the equivalent of having a KGB 
operation being run against the White House.
    So when you investigate--which you should. I know how those 
things are done. I know about putting people in somewhat--let 
me put it this fairly: Make sure they are well aware of what 
their rights are, and make very sure of the fact that there is 
accountability there, first and foremost. That is the way this 
thing should be done, very carefully.
    But more than that, the thing I will just say to you----
    Mr. Sensenbrenner. The gentleman's time has expired.
    Colonel Allard. And I will tell you one key thing: Make 
very sure that when you look at them, you are looking at this 
thing from the standpoint of the national interest, not the 
press' interest.
    Thank you, sir.
    [The prepared statement of Colonel Allard follows:]
     Prepared Statement of Colonel Kenneth Allard, U.S. Army (Ret.)
    Mr. Chairman, Members of the Committee, Ladies & Gentlemen: Thank 
you for the privilege of testifying before this committee. It is an 
honor for me, a former APSA Congressional Fellow, to return from whence 
I came--something seldom to admitted back home in Texas.
    Today's topic, ``National Security Leaks And The Law'' is one I can 
address at several levels. Most of my military career was spent as an 
intelligence officer, including overseas assignments in the Army's 
equivalent of the FBI. As an Army Special Agent, I investigated the 
national security crimes enumerated by Title 18, US Code, including 
sabotage, subversion and espionage--all against the deadly serious 
backdrop of the Cold War. My military career ranged from entry as a 
draftee to retirement from active duty as a Colonel and Dean of the 
National War College. Out of uniform, I spent nearly a decade as an on-
air military analyst for NBC News, MSBC and CNBC. My media involvement 
today is principally as a columnist for blogsites ranging from the 
Daily Caller to the Daily Beast but most recently for the Huffington 
Post. The author of five books, I am also a featured reviewer for the 
New York Journal of Books (NYJB).
    Based on those experiences, this morning I can suggest to this 
committee that your misgivings about media bias are well-founded and 
fully shared by your constituents; that `media ethics' is a term often 
indistinguishable from `media self-interest,' usually in direct support 
of a pervasive left-wing narrative; and that such self-interests 
inevitably trump the interests of national security. In short: Media 
objectivity has been replaced by media advocacy, even at the expense of 
national security. Let me briefly cite three specific examples to 
support that assessment.
    First, I was recently assigned by NYJB to review a new book by New 
York Times reporter David Sanger. Ironically entitled Confront & 
Conceal (NY: Crown Publishers, 2012), my evaluation as a reviewer is 
that Mr. Sanger's book conceals nothing and represents a new low in the 
profligate revelation and sale-for-profit of the most sensitive 
American military and diplomatic secrets. Sadly this vice is also 
habit-forming, since we have now become accustomed to the anarchy of 
Julian Assange and Wikileaks; and to the repetitive, in-your-face 
defiance of every defense classification by Bob Woodward--both in his 
Washington Post columns and his books. But Mr. Sanger's book, among 
other things, reveals that the Obama White House orchestrated a 
deliberate, integrated campaign of industrial espionage against Iranian 
nuclear facilities, including the use of the Stuxnet and Flame viruses.
    The danger of those shocking revelations can hardly be over-stated. 
Not only is industrial sabotage against Iran clearly an act of war, 
just like a blockade or an aerial bombardment; but such headlines also 
expose the United States to retaliation from a country whose links to 
terror are well-established. As the President's own cyber-czars have 
repeatedly warned us, the American economy and infrastructure are 
computer-dependent and therefore uniquely vulnerable to retaliatory 
cyber-strikes. One of the defining features of cyber-war is the absence 
of a return address on a worm, a virus or a well-orchestrated computer 
hack. Yet Mr. Sanger--systematically penetrating the Obama White House 
as effectively as any foreign agent--removed any conceivable doubt 
about Stuxnet, Flame or American intentions regarding Iran. I believe 
that Mr. Sanger's actions cry out for a painstaking investigation. Did 
he violate the Espionage Act? If he did, those actions potentially 
place him, his superiors at the New York Times and his publishers at 
Crown Books in jeopardy of forfeiting their liberty and property. Far 
from advancing our rights as citizens--as a free press should--Mr. 
Sanger deliberately placed his country at significant risk for his own 
profit. He might just as well have knocked over a local bank and then 
claimed a journalistic interest in money supply--his own most of all.
    Ever since the articles profiling Mr. Sanger's book first appeared 
in the New York Times, the blogosphere has been alive with speculation 
dominated by one question. Was this expose timed deliberately by the 
NYT to enhance President Obama's re-election chances? The Times has 
revealed only that multiple sources helped to produce its story. 
President Obama has publically stated that he finds it ``offensive'' 
that anyone would dare to suggest ``that my White House would purposely 
release classified national security information.'' So let me stress 
for the record that I do not know if those leaks were deliberate and, 
until it investigates for itself, neither does this committee. But the 
rather casual treatment of Top Secret-codeword information has been a 
constantly recurring theme among people with National Security Council 
experience. I am not naive enough to think this problem has been 
limited to the Obama White House--or that Republican officials in 
previous administrations have been blameless. But Mr. Chairman, as an 
experienced field investigator, I would recommend unraveling the 
current failure chain in the most exacting fashion--while always asking 
Cicero's classic question: Cui bono?
    Second, I can also speak from personal experience as a book 
reviewer about the dubious ethics routinely employed by the NYT to 
advance its own agenda. Basically, the Times exploits its dominant 
position in the news industry to promote the views of its own authors 
and its own agendas. Mr. Sanger's front-page articles, for example, 
were closely coordinated with his book's publication date--the better 
to insure it ``flew off the shelves'' and increased sales. But so too 
were those all-important first reviews from the few writers allowed 
prior access to the book. We at the NYJB were not among them, even 
though we offered to sign a pre-release non-disclosure agreement, a 
common publishing practice. But the NYT does not trust anything it 
cannot control, a position it strengthens still further by publishing 
its own book reviews. Naturally, that position also allows it the 
luxury of chastising its political enemies, particularly when the 
issues involve national security. Last year, for example, I signed a 
non-disclosure agreement with his publisher to review the book by 
former Secretary of Defense Donald Rumsfeld, Known And Unknown. Exactly 
as agreed, my review appeared at midnight on the book's publication 
date--but it was not the first. Days earlier, the NYT also reviewed the 
Rumsfeld book and, not surprisingly, trashed it. But their dirty little 
secret: the NYT had somehow obtained a ``bootleg copy'' of the book 
from an unscrupulous source--probably paying for the privilege. As most 
insiders in the publishing community know all too well, the NYT will go 
to any lengths to insure that their worldview is trumpeted exclusively 
from the housetops. But those publishers also fear being excluded from 
the Blue Ribbon of publishing--New York Times Best-Seller--so they 
won't tell you. I just did of course but let me also add the 
observation that purloining information--either classified or protected 
by copyright is precisely what the NYT does, as well or even better 
than my KGB colleagues during the Cold War.
    Third, I have personally experienced what it feels like when the 
NYT deliberately distorts national security information, even to the 
point of plagiarism. On April 20, 2008, the NYT published an 
inflammatory expose: ``Behind Analysts, Pentagon's Hidden Hand'' by 
David Barstow. The Times' article charged that over 70 retired 
officers, including me, had misused our positions while serving as 
military analysts with the broadcast and cable TV networks. The article 
went on at considerable length (7500 words) to suggest that: we had 
been seduced by privileged access to closed-door Pentagon briefings; 
that some of the military analysts had allowed their ties to defense 
contractors to influence what they later said on TV (there were even 
hints of possible kickbacks); but above all, that the military analysts 
had conveyed to their TV audiences a view of the wars in Afghanistan 
and Iraq secretly shaped by Pentagon propaganda.
    Mr. Chairman, I shall not long detain the committee by repeating 
information already in your possession, but let me briefly summarize 
what happened next:

          The NYT article prompted angry denunciations from 40 
        House Democrats as well as Senators Carl Levin, Hillary Clinton 
        and Barack Obama;

          In response, investigations were promptly launched by 
        the General Accounting Office, the Federal Communications 
        Commission as well as the Pentagon IG; and finally

          After more than three years, four separate Federal 
        investigations, and the expenditure of at least $2.3M, we were 
        fully exonerated by the DOD IG. That agency found no evidence 
        that any Federal law, regulation or instruction had been 
        violated, despite the charges leveled by the NYT.

    Equally revealing: The NYT finally published a grudging 
``clarification''--but on Christmas Day, deeply buried in an interior 
section. As the Wall Street Journal commented acidly several days 
later, the original NYT story, ``all fit tidily into the narrative that 
the war was a conspiracy run by a Dick Cheney-Don Rumsfeld shadow 
government. Michigan Senator Carl Levin and then-Presidential 
candidates Barack Obama and Hillary Clinton called for federal 
investigations. Well, those investigations have now shown that the 
liars weren't at the Pentagon.''

(http://online.wsj.com/article_email/
SB10001424052970204791104577110642828278
05lMyQjAxMTAxMDIwNzEyNDcyWj.html?mod=wsj_share_email#articleTabs%3D
article)

    Mr. Chairman, that same WSJ article referred to the book I wrote--
Warheads: Cable News and the Fog of War, published in 2006 by the US 
Naval Institute Press--18 months prior to the NYT article. From that 
article's publication until this morning, I have never mentioned the 
name of its author, David Barstow, recipient of the 2009 Pulitzer 
Prize. However, I have complained, publicly that Mr. Barstow neglected 
to mention even the existence of Warheads in the course of his lengthy 
article. He thereby concealed how my book provided him with a framework 
that he repeatedly acknowledged to me during at least 3-4 hours of 
telephone interviews in early 2008. (I have separately provided the 
committee's general counsel with Mr. Barstow's private telephone and 
cell phone numbers as verification.) Our conversations even began with 
references to specific pages and chapters in Warheads.
    Yet Mr. Barstow ultimately failed to mention Warheads--or even its 
existence--because to have done so would have fatally undercut what the 
WSJ later described as ``myth-making.'' I have made these same points 
in articles that have appeared from newspapers (San Antonio Express 
News) to well-respected blogsites like Real Clear Politics. When Mr. 
Barstow was awarded the Pulitzer, I also complained directly to the 
Dean of the Columbia School of Journalism, which administers the 
Pulitzer awards committee. Finally, I also contacted the New York Times 
public editor and publisher: All to no avail.
    Based on these experiences, I can recommend three specific actions 
to this committee, especially if you are serious about pursuing today's 
topic, which extends far beyond simple media bias.
    First, it is essential that the Congress take the lead in 
investigating Mr. Sanger and his White House sources. Who leaked the 
information, who else was involved and who conspired to publish that 
information to a global audience? (which certainly included that 
hostile foreign power known as the Islamic Republic of Iran) Were the 
motivations of those in this failure chain political, economic or 
ideological? Finally, has Title 18 actually been violated and are 
criminal charges warranted? I suggest that this determination is one 
that Congress cannot delegate elsewhere--certainly not to the 
independent counsels appointed by an Attorney General already found in 
contempt of Congress.
    Second it is vital that such an investigation also be undertaken to 
test the Espionage Act. Is this act, passed during World War I, still 
adequate to protect American secrets in the 21st century--amidst the 
information revolution? Even before this revolution began, leaking has 
been a bipartisan sport, practiced so widely as to erase the law's 
previously bright lines. Its provisions clearly apply to anyone 
employed by our government or holding a government-issued security 
clearance. But in the brave new world of open-source information, what 
are the obligations of journalists or even those without security 
clearances? While espionage is a criminal offense in most countries, 
some argue that we should not criminalize investigative reporting, that 
some degree of latitude is essential to protect whistleblowers and the 
usually undefined privilege of the public's right to know. Bottom line: 
The Congress and this committee must find a new trial balance between 
freedom and responsibility because the old one has obviously collapsed.
    Third, the Congress clearly owes the Warheads an apology for the 
actions taken in its name and at the direct instigation of some Members 
still holding office. Not only are some of my brothers authentic heroes 
but all are distinguished veterans who did nothing to deserve the 
ignominy heaped upon them by the New York Times--much less potential 
indictments. Most Americans live in mortal fear of an IRS audit. What 
would they say to four Federal investigations being inflicted on the 
Warheads--each financed by significant outlays from the public 
treasury?
    My conclusion does not take the form of a specific recommendation 
to this committee, since there can now be little doubt about media 
bias. Our citizens simply take that bias for granted, considering the 
New York Times to be one of its more extreme examples. So what do we do 
about it? Last year, I reviewed a fascinating book, The Deal From Hell, 
by James O'Shea, former editor of the Chicago Tribune and the Los 
Angeles Times. (NY: Perseus Books, 2011) Mr. O'Shea makes the sensible 
point that our media outlets--great and small--depend on popular 
support, just like any other business. As voters, we freely make 
choices at the polls. Why then as information consumers should we not 
feel free to boycott newspapers when we find their actions egregious? 
Or even to apply those same judgments to companies who use them to send 
their commercial messages? Such power to reward or penalize rests 
solely in the hands of our citizens: but they need leadership and 
encouragement.
    In conclusion, Mr. Chairman, I leave you with a quote from one of 
my favorite newspaper characters, that all-wise, practical philosopher 
named Pogo, who famously said, ``We have met the enemy and he is us.'' 
Never more so than here and now!
                               __________

    Mr. Sensenbrenner. Professor Vladeck?

TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW AND ASSOCIATE 
DEAN FOR SCHOLARSHIP, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF 
                              LAW

    Mr. Vladeck. Thank you, Chairman Sensenbrenner, Ranking 
Member Scott, distinguished Members of the Subcommittee. Thank 
you for the invitation to testify today and in such 
distinguished company.
    I have had the honor of testifying previously alongside 
Professor Sales and Mr. Wainstein, but the fact that we and 
Colonel Allard continue to be called before you and other 
Committees of the Congress to speak on the topic of national 
security leaks provides, in my view, fairly strong evidence of 
both the recurring nature of such unauthorized disclosures of 
classified information and the difficulties that generations of 
lawmakers, lawyers, and I daresay law professors have 
confronted in trying to address them.
    Thus, although I am sure reasonable people will disagree 
about the politics of aggressively seeking to prosecute those 
allegedly responsible for the unauthorized disclosure of 
national security information, I hope to convince you of two 
related points that should transcend the politics of the 
moment.
    First, national security leaks are in many ways only a 
symptom of the much larger disease that has already been 
alluded to this morning of overclassification, a problem that 
Congress unquestionably has the power, if not always the 
inclination, to ameliorate.
    Second, even if this Subcommittee believes that national 
security leaks by themselves are a problem worth a solution and 
that this Administration's fairly aggressive track record has 
not been sufficiently aggressive, the primary statute that the 
Federal Government has thus far used to prosecute alleged 
leakers, the Espionage Act, which we have already been 
discussing, is terribly ill-suited to the task.
    Instead, if Congress wants to pursue reform in this field, 
it must fundamentally revisit the Federal classifications game 
and, as part of that scheme, provide a far more narrowly 
tailored and carefully crafted sanction specifically targeted 
at government employees who intentionally disclose properly 
classified information to the public without any intent to harm 
our national security.
    Until and unless reforms like these are undertaken, 
national security leaks will recur regardless of whether a 
Democrat or a Republican sits in the White House. What is more, 
given how many governmental abuses over the past decade have 
been publicly exposed only through these kinds of leaks, so 
long as the classification regime remains in its current form, 
this may not be an entirely undesirable result.
    I won't belabor the Members with a long discourse on the 
pervasiveness of overclassification. Mr. Chairman, my written 
testimony has a little more on this, and certainly we can bring 
this up in the Q&A if it is relevant. I just want to add a 
couple of brief points about what has already been said with 
respect to the Espionage Act.
    So Mr. Wainstein and Professor Sales talked about the age 
of the Espionage Act, the ambiguity of the Espionage Act. I 
think it is also important to elaborate on a point that Mr. 
Wainstein made: The Espionage Act does not focus on the initial 
party who wrongfully discloses national defense information. 
Instead, it applies in its terms to anyone who knowingly 
disseminates, distributes, or even retains--I think that is a 
very important point--retains national defense information to 
which they are not entitled without immediately returning that 
material to the relevant government officer authorized to 
possess it.
    In other words, the text of the act draws no distinction 
between the leaker, the recipient of the leak, or the 100th 
person to redistribute, retransmit, or even retain the national 
defense information that by that point is already in the public 
domain. This is a big part of why the act raises such profound 
First Amendment questions, not because, as Professor Sales 
suggested, of the First Amendment rights of the putative 
leaker, but because of the First Amendment rights of they who 
retransmit the leak and those of us who read about the leak on 
the pages of The New York Times, The Washington Post, and so 
on.
    Moreover, the potentially sweeping nature of the Espionage 
Act as currently written may inadvertently interfere with 
Federal whistleblower laws. For example, the Federal 
Whistleblower Protection Act protects the 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 
other Federal whistleblower statutes.
    Finally, the Espionage Act does not deal with the real 
elephant in the room: situations where individuals disclose 
classified information that should never have been classified 
in the first place, including information about unlawful 
government programs and activities. Most significantly, every 
court to consider the question has rejected the availability of 
a so-called improper classification defense, a claim by the 
defendant that he could not have violated the Espionage Act 
because the information he is disclosing should not have been 
classified.
    Testifying before the House Permanent Select Committee on 
Intelligence in 1979, Anthony Lapham, then the general counsel 
of the CIA, described the uncertainty surrounding the Espionage 
Act as the worst of both worlds. As he explained, quote, ``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 
serve to deter perfectly legitimate expression and debate by 
persons who must be as unsure of their liabilities as I am 
unsure of their obligations.''
    Whatever one's views of the national security leaks, Mr. 
Chairman, Lapham's central critique drives home why, regardless 
of who is in the White House, prosecuting national security 
leakers will always be a legally and politically fraught 
proposition.
    Thank you, and I look forward to your questions.
    Mr. Sensenbrenner. Okay. Thank you very much.
    [The prepared statement of Mr. Vladeck follows:]
    Prepared Statement of Stephen I. Vladeck, Professor of Law and 
Associate Dean for Scholarship, American University Washington College 
                                 of Law

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                               __________

    Mr. Sensenbrenner. We will now have questions under the 5-
minute rule. And, first, I will recognize the gentleman from 
California, Mr. Lungren.
    Mr. Lungren. Thank you very much, Mr. Chairman. I 
appreciate that.
    Does anybody believe that the laws that we are talking 
about, particularly the Espionage Act, would not properly come 
into play with the alleged revelation of or participation, if 
true, in the Stuxnet virus or the Flame virus?
    Mr. Vladeck. I will give the law professor answer. I think 
it depends on how that information was actually disclosed. So--
--
    Mr. Lungren. Well--well--okay. You are going to the 
question--are you suggesting that it is a question of 
overclassification?
    Mr. Vladeck. No, sir. I am suggesting that there could be 
situations where information is disclosed because an official 
who has the authority to authorize such a disclosure provides 
that authority. And I don't know that we know whether or not 
that is true in this case.
    Mr. Lungren. Would it bother you to know that the detail 
that was described in The New York Times, if true, is a level 
of detail not presented to Members of Congress, such as the 
Chairman of the Cybersecurity Subcommittee on Homeland 
Security? That happens to be me.
    Mr. Vladeck. I wouldn't have guessed.
    Mr. Lungren. Wouldn't that bother you, that an 
Administration that is supposed to be working with the proper 
role of the legislative branch to do oversight utilizes 
classification in such a way that Members are not aware of the 
particulars unless they read The New York Times? That is, if 
what is in The New York Times is true.
    Mr. Vladeck. It would bother me. All I would point out is 
that it would hardly be the first time that Members of Congress 
found out about those kinds of programs from the press as 
opposed to from the Administration. I mean, it would bother me 
no matter who was in Congress and who was in the White House.
    Mr. Lungren. Because that also goes to the constitutional 
question of the powers of the legislative branch to do proper 
oversight to ensure that we are not having malefactors in the 
executive branch in the areas of serious concern.
    Colonel, you said this is unprecedented----
    Colonel Allard. Yes.
    Mr. Lungren [continuing]. In your experience.
    Colonel Allard. It absolutely is.
    Mr. Lungren. And I know why I think it is unprecedented, 
but could you tell me why you believe it is unprecedented? In 
addition to the fact that, as you mentioned, the experience of 
Midway, I do recall there was an expression utilized during 
World War II that went, ``Loose lips sink ships.'' They could 
certainly sink cybersecurity.
    Colonel Allard. Absolutely can. For reasons that General 
Alexander pointed out on this very Hill 2 days ago. We are 
vulnerable to any form of cyber means. We are more dependent on 
these forms of computers, computer systems, everything, than 
any other country on Earth. So guess what? If a cyber virus 
comes into us--the same way that we did it to Iran, 
apparently--we are more vulnerable to this than the other guy. 
Why would you then do it? That is what bothers me the most, 
other than the fact that I read this in The New York Times.
    As I read his book, what really bothered me was the 
consistent access he had. Because, having written five books 
myself, you can't write a book unless you have been there and 
can actually talk about these things. He was actually there or 
had people in there who told him what actually occurred. When 
that degree of penetration is going on, as I said, that is like 
the KGB is acting in the operation.
    Mr. Lungren. My observation is, either The New York Times 
is lying or they had access to information of a particular 
detail that could only have come from someone who participated 
in the Situation Room. And as someone who has been involved in 
prosecutions in the past, you do look to motivation to try and 
figure out where your investigation would take you.
    Colonel Allard. That is right.
    Mr. Lungren. Would it be unreasonable for us to subpoena 
individuals who would apparently be involved in the discussions 
that were revealed in these articles?
    Colonel Allard. As I read not only in Mr. Sanger's book but 
also Bob Woodward's book 2 years ago, ``Obama's Wars,'' at 
least the first two chapters are classified Top Secret 
Codeword. As I looked at that, I thought, okay, if I were doing 
the investigation, I would say, cui bono, Cicero's great 
question, who benefits? Whose position is enhanced by these 
leaks? That is where you begin the investigation.
    Mr. Lungren. I know who has not benefited by it; that is, 
the Navy SEALs who were involved in the operations and their 
families. I know that those professionals who were working with 
us in the area of cybersecurity are not benefited by this. I 
know that the national security interests of the United States 
are not benefited by this. And so we ought to be looking at 
what is benefited by this.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Professor Sales, in 5 minutes you can't detail things that 
you had in your statement. You went through the definition of 
the offense, ``willfully communicating, delivering, 
transmitting any information related to the national defense to 
any person not entitled to receive it if the official has 
reason to believe this information could be used to injure the 
United States or advantage any other country.''
    And there are a lot of words in there that are subject to 
interpretation. One is ``national defense.'' You have talked 
about that a little bit. Is that limited to military?
    Mr. Sales. It certainly includes military matters, but 
not----
    Mr. Scott. Includes military. What about--you mentioned 
trade deals. Are trade deals not covered by, quote, ``national 
defense''?
    Mr. Sales. I don't think it clearly is covered in the way 
that intelligence information would be covered or military 
information would be covered.
    Mr. Scott. Foreign intelligence in some of the legislation 
we have considered included trade deals.
    Mr. Sales. I think a trade deal arguably could be in some 
circumstances, but it is not as clearly relevant as military 
information or intelligence information would be.
    Mr. Scott. Are we talking about only classified information 
being covered, or can sensitive information that has not been 
classified be covered?
    Mr. Sales. Under the current statute, it is possible that 
unclassified information that relates to the national defense 
could trigger criminal liability.
    Mr. Scott. All classified information covered?
    Mr. Sales. Not necessarily. There might be some forms of 
classified information that are not properly classified. There 
might be some forms of classified information that do not 
relate to national defense. And----
    Mr. Scott. Is ``improperly classified'' a defense to a 
criminal action?
    Mr. Sales. As my friend and colleague, Professor Vladeck, 
has pointed out, most courts, in fact I think all courts, have 
rejected the notion that improper classification exonerates one 
under the Espionage Act.
    Mr. Scott. Okay.
    Professor Vladeck, we had leaks to the press. I think one 
of the first cases was the Pentagon Papers. Is a reporter 
liable under this if he reports what he heard?
    Mr. Vladeck. You know, Congressman, we talked about this 
before. I think that the text of the statute, I think, could be 
used to go after a reporter, not necessarily for the act of 
publishing this information, but even for the act of holding 
onto it when he is not entitled to.
    I think the government has always been very, very reluctant 
to pursue those cases because of the very serious First 
Amendment concerns they raise. But in the Pentagon Papers case 
you mentioned, Justice White specifically suggested in his 
concurrence that although the courts could not stop The New 
York Times from publishing the Pentagon Papers, the Nixon 
administration could potentially prosecute them after the fact.
    Mr. Scott. So the state of the law now is what?
    Mr. Vladeck. You know, I think the best I can say is the 
law is unclear. I think there has only been one case in the 
history of the Espionage Act where the government has 
prosecuted a third party--that is, a recipient of the 
information as opposed to the leaker. That case fell apart. 
That was the APAC case in Virginia in 2005.
    I think there would be serious First Amendment concerns in 
such a case, but those concerns have not yet, you know, 
produced an opinion saying that you cannot bring such a 
prosecution. So that is why I referenced that quote about the 
uncertainty about the scope of the statute.
    Mr. Scott. Well, if you are talking about the press 
generally, we have some new problems. Who is a journalist and 
who isn't? Is a blogger a journalist?
    Mr. Vladeck. Well, you know, the Supreme Court, I think for 
that exact reason, has historically resisted giving special 
content to the press clause of the First Amendment because they 
don't want to draw the distinction between The New York Times 
and a blog. So I think that is only part of the murkiness here.
    Mr. Scott. And then the WikiLeaks, is he a blogger or a 
journalist?
    Mr. Vladeck. Well, I mean, I think if the government were 
to ever go after Julian Assange under the Espionage Act, I am 
sure that he would try to raise a First Amendment claim along 
the lines that he is merely the press, retransmitting this 
information.
    Mr. Scott. Well, let me just--can I ask generally, what is 
the difference between somebody that leaks and a whistleblower?
    Mr. Vladeck. Perspective? I mean, I think----
    Mr. Scott. Is that the ``intent to harm'' part of the 
statute?
    Mr. Vladeck. I mean, I guess the problem is, you know, 
Congressman, there are examples of individuals who have been 
prosecuted for leaking who saw themselves as whistleblowers. I 
think Thomas Drake is a very good example of that.
    You know, and that is why I think it is a question of 
perspective. I think whistleblowing--if we understand 
whistleblowing to mean calling attention to waste or misconduct 
on the part of the government, I think sometimes that will 
include leaking information that is not properly in the public 
domain.
    Mr. Scott. Colonel, do you want to comment on that?
    Colonel Allard. There are two things. The test being, first 
of all, the subject matter. Is it relevant, is it germane to 
the national defense? That test of legitimacy is key. The 
second, what was your motivation? Any legal test also involves 
motivation. Was the motivation here a promiscuous relationship 
to dump government secrets, or was it intended to do something 
else? It is a very tough line to draw.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The gentleman from South Carolina, Mr. Gowdy.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Mr. Wainstein, you said leaks have been around for time 
immemorial. It strikes me, one way to have fewer leaks is to 
actually prosecute and put in prison the people who do the 
leaking. So I want to talk to you for a second.
    I couldn't find a Federal statutory reporter privilege. Am 
I missing it?
    Mr. Wainstein. You couldn't find a reporter privilege? No. 
You are right.
    Mr. Gowdy. It doesn't exist----
    Mr. Wainstein. It doesn't exist.
    Mr. Gowdy [continuing]. In statute, so then we would have 
to turn to the common law. And I am not aware of any privileges 
that are unqualified, and certainly the reporter's privilege 
would be limited and would be qualified. So then we move to 
this area where--because it is the First Amendment, heaven 
knows we can't have any limitations on that.
    So I thought maybe you and I together, with the help from 
our friends who are law professors, could come up with some 
examples on where there are limitations of people's First 
Amendment rights. I will go first. Obscenity. What is another 
one, Professor?
    Mr. Sales. Well, in Near v. Minnesota, the Supreme Court--
--
    Mr. Gowdy. You don't have to cite the cases.
    Mr. Sales. Information about ships' sailing dates and----
    Mr. Gowdy. How about deceptive advertising? How about 
students on high school campuses? They don't have the full 
panoply of First Amendment rights. How about libel? How about 
government employees?
    So the notion that the First Amendment has no limitations 
whatsoever is balderdash, legally and otherwise.
    So that then leaves me with this conclusion: We are asking 
the U.S. attorney, I think in the District of Columbia, to 
investigate leaks. And if he follows DOJ policy, he has to ask 
the Attorney General, 4 months shy of an election, for 
permission to subpoena a reporter in a case that may wind up 
being embarrassing for this Administration.
    So why do we not have a special prosecutor in this case?
    Mr. Wainstein. I think, Congressman, you are referring to 
the internal DOJ guidelines----
    Mr. Gowdy. Yes.
    Mr. Wainstein [continuing]. That require that the Attorney 
General personally sign off on a request to subpoena a 
reporter.
    Mr. Gowdy. That is exactly right. DOJ policy.
    Mr. Wainstein. It is DOJ policy. It is in place to protect 
the free press, to make sure that prosecutions don't chill the 
exercise of free press.
    Mr. Gowdy. Well, it is certainly not the law. That is just 
DOJ policy.
    Mr. Wainstein. It is not the law. If you look at the 
Espionage Act, there is nothing in the Espionage Act. As you 
pointed out, there is no privilege.
    Keep in mind, however, you can make leak investigations and 
leak prosecutions without actually subpoenaing the reporter----
    Mr. Gowdy. You may can. But you can also win murder cases 
without calling the eyewitnesses. You can win a murder case 
without calling the DNA expert.
    Why not send a subpoena to the reporter? Put him in front 
of a grand jury. You either answer the question or you are 
going to be held in contempt and go to jail, which is what I 
thought all reporters aspired to anyway.
    Mr. Wainstein. Well----
    Mr. Gowdy. I mean, all of us aspire to be Committee 
Chairmen. I thought that that was the crown jewel in a 
reporter's resume, is to actually go to jail protecting a 
source. Give them what they want.
    Mr. Wainstein. Yeah, there was a reporter who got the crown 
jewel and spent, whatever it was, 70 days in jail or 
something----
    Mr. Gowdy. Seventy days.
    Mr. Wainstein [continuing]. In the Plame case.
    Mr. Gowdy. You can sleep for 70 days.
    Mr. Wainstein. But you make a good point, which is that the 
easiest way to make these cases is to just go to the reporter. 
Either get the reporter's phone records, email records----
    Mr. Gowdy. I mean, if you were the prosecutor----
    Mr. Wainstein [continuing]. Or actually subpoena him and 
put him in the grand jury. That would be the----
    Mr. Gowdy [continuing]. What would you do other than that?
    If you were the prosecutor and your job was to get to the 
bottom of it as quickly as you could, you would send a subpoena 
to the reporter, right?
    Mr. Wainstein. Right.
    Mr. Gowdy. And put him in front of a grand jury.
    Mr. Wainstein. Right. And keep in mind, I am going to 
defend the existence of that regulation, not necessarily 
defending the application of it and how stringently it should 
be applied----
    Mr. Gowdy. I am not saying that every line AUSA in every 
district in the country should be able to subpoena a reporter. 
I am not saying that. I am just saying that something as 
important and compelling, if you want to use a constitutional 
analysis--if you want to talk about the tiers of scrutiny, 
something as compelling as national security. And Ron Machen 
has to ask the Attorney General for permission to subpoena a 
reporter in what may be a very embarrassing fact pattern 4 
months before a general election.
    You know, we have to have confidence in the outcome, and 
you have to have confidence in the process. So why not do what 
lots of Members of the House and Senate have asked and have a 
special prosecutor? Why not do it?
    I have never heard law professors this silent before.
    Mr. Vladeck. I mean, you know, I think it assumes facts not 
in evidence. Right? It assumes that the Attorney General, faced 
with a request from two U.S. attorneys, two highly regarded 
U.S. attorneys, specifically chosen for this task----
    Mr. Gowdy. Well, has the reporter appeared before a grand 
jury yet?
    Mr. Vladeck. If they have, we wouldn't know, because grand 
jury proceedings are sealed.
    Mr. Gowdy. Oh, well, then we didn't----
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you very much, Chairman Sensenbrenner. 
I, first of all, want to compliment you on pulling together a 
stellar panel of witnesses who, from very varied experiences, 
have made this a very important and interesting hearing.
    I wanted to begin with just two observations. One, I would 
like any of you that would like to tell us about anything new 
to your perspective of this subject of national security leaks 
and the law that have come to your attention as a result of the 
discussions that you have heard of your fellow panelists and 
the Members of the Committee.
    Does anyone have something they would like to add to the 
record?
    Colonel?
    Colonel Allard. Mr. Conyers, when I talk about the fact 
that you have to be very careful in revising the Espionage Act, 
I say that not only because I was a special agent myself; I 
have also been the subject of four congressional 
investigations, four Federal investigations, myself, based on 
this article, which came out in 2008. It took this Committee--I 
am sorry, it took the four Federal agencies 3 years, $2.3 
million to exonerate these people that included myself.
    So guess what? When I talk about the protections of the 
law, I know what I am talking about. I have not only been a 
special agent, I have also been a subject.
    Mr. Conyers. Yes.
    Colonel Allard. So guess what? That is a chilling effect. 
You never forget that. Fortunately, I am here to tell you that 
this should probably come in first because I managed to 
succeed. And believe me when I tell you, when you defy Federal 
agencies, if you are not right, they are coming after you.
    So I would simply say, when you try and enact legislation, 
be very careful----
    Mr. Conyers. Uh-huh.
    Colonel Allard [continuing]. Because you are going right 
back to Philadelphia.
    Mr. Conyers. Thank you.
    Colonel Allard. That is consensus that I think I talked 
about in my statement.
    Mr. Conyers. Thank you.
    Mr. Wainstein, what would you offer to this discussion, 
sir?
    Mr. Wainstein. I guess you are asking if there is anything 
new today. The thing that struck me--and Steve Vladeck and I 
were talking about this at the beginning--this is our third 
hearing on this issue in the last year and a half. We testified 
in the Senate in 2010 about the Espionage Act, we testified 
here before you all in the aftermath of the WikiLeaks 
disclosures, and then today, all about what should we do about 
the Espionage Act. And I think, if anything, that reinforces in 
my mind that there is a real imperative to take a look at the 
legislation and bring it into the modern age, because it needs 
reform.
    Mr. Conyers. Uh-huh.
    Professor Sales?
    Mr. Sales. Thank you, Congressman.
    One quick follow-up to what Mr. Wainstein just said. 
Congress actually did this in 2000. Congress, both houses, 
passed legislation that would have created an entirely new 
statute along the lines we discussed earlier. Do away with the 
Espionage Act for dealing with leakers. The press is a totally 
separate issue and much more complicated issue. But to answer 
the question, what do we do with government employees who leak, 
Congress actually solved that problem a decade ago. 
Unfortunately, the legislation was vetoed, so we are still 
waiting for more precise instructions on exactly what the scope 
of liability is for officials who leak.
    Mr. Conyers. Professor Vladeck, should we just rewrite the 
whole subject of security leaks, or should we just improve on 
the 1917 version?
    Mr. Vladeck. You know, Congressman, I think I would 
actually go even further. I would say, not only should there be 
a careful, calibrated amendment of the Espionage Act, but that 
I think that Congress should see as part of that effort 
reforming the classification scheme. Because I think Congress 
has historically not exercised the power in that area that I 
think it clearly has to not leave this all up to the executive 
branch's fiat.
    You know, the Atomic Energy Act of 1954 actually provides 
detailed classification rules for certain forms of information 
regarding our nuclear energy program, but it is alone. Right? 
All of the other classification is done by executive order.
    And so I think, you know, if the Committee is serious about 
a workable system going forward, I think that system can't just 
include the back-end sanctions. It has to include the front-end 
rationalization of how we classify national security secrets.
    Mr. Conyers. I would ask any of you that would like to 
submit this for the record, because time won't permit it today, 
but I would like an evaluation from any of you about the 
following subjects: Watergate and the Plumbers; the Pentagon 
Papers and Dan Ellsberg; and the whole concept of prior 
restraint. I would appreciate anything that you could get on 
that.
    Mr. Sensenbrenner. Without objection, the material will be 
put in the record. We would like to publish the record sometime 
within the next 2 years, however, since this is somewhat of a 
broad request, but do your best.
    The gentlewoman from Florida, Ms. Adams.
    Mr. Conyers. Thank you.
    Mrs. Adams. Thank you, Mr. Chairman.
    Mr. Wainstein, does leaking military field reports or 
diplomatic cables endanger innocent people and harm our 
national security?
    Mr. Wainstein. Certainly can. And I think in the WikiLeaks 
case we saw that there was danger presented to people, in 
particular those folks who were over in the war zones who 
helped us out and who then get outed by those documents that 
were made public. Who knows what has happened to some of them, 
but I am in fear for their lives.
    Mrs. Adams. And, Colonel, if you could, how would you 
address to our allies--you know, I am sure they are concerned 
with the problems of our intelligence services, loss of 
confidence in our keeping the ability to keep secrets and such. 
How would you repair that damage and how would you address it 
if you could?
    Colonel Allard. I am not sure.
    Ma'am, I was a young intelligence officer in Germany during 
the Church Committee hearings back in the 1970's. I had sources 
look at me and say, you know what, I am not going to do that 
for you because I don't want to see my name on the front page 
of The New York Times or Washington Post. I now know how they 
felt.
    And let me tell you something. When you have that 
reluctance of sources to believe in the confidence of the 
United States, that is a huge blow. It takes years to overcome 
this. And I don't think it will be overcome unless and until 
this Congress passes legislation which makes a sensible 
accommodation.
    But I absolutely agree with the Professor Vladeck 100 
percent. You have to address both the input as well as the 
output. We are overclassified. And so, if you try and protect 
everything, you protect nothing.
    And, by the way, the American people are tired of paying 
the bill for these things. It costs money to classify; it takes 
money to protect it. We are not doing either thing very well.
    Mrs. Adams. Well, I have to tell you that hearing your 
statements, ``act of war,'' ``KGB,'' unprecedented, consistent 
access to documents, information that should be classified--you 
would agree that you think this, if it was true, should have 
been classified?
    Colonel Allard. Ma'am, there is no question about the fact 
that what is in Sanger's book, as well as on the front page of 
The New York Times, is a valid exercise in classification. If 
that is not classified, then nothing is.
    Mrs. Adams. So----
    Colonel Allard. And, as I said, this affects American 
security of every single one of us here, every single one. If 
all of a sudden the utilities stop operating, you have Mr. 
Sanger to thank for it.
    Mrs. Adams. So then you would agree that what you have 
read, if in fact it is true, should have been classified; 
therefore, there should be a thorough and complete 
investigation.
    Colonel Allard. There absolutely should be! As I said in my 
statement, I was here when the Congress investigated. What 
really bothers me, I think, about this is, it has become an 
agency for American secrets to wind up becoming reporters' 
profits. That is what has happened here.
    Mrs. Adams. And I agree that that should not be happening 
at the--I guess at the benefit of the reporters or whomever 
they are benefiting, but at the detriment of the American 
people. And, as you said, we are vulnerable, too, and this puts 
our American people at risk.
    And with that, I am going to yield to my colleague, the 
astute--let's see--attorney, prosecutor, Trey Gowdy.
    Mr. Gowdy. Well, I was hoping to keep that a secret, but I 
thank the gentlelady from Florida for outing me as a lawyer.
    Mr. Wainstein, I want you to assume that you and another 
highly decorated former prosecutor, the former attorney general 
from the great State of California, Mr. Lungren, were appointed 
special counsel. You would subpoena the reporter and you would 
subpoena everyone in the Situation Room, right, before a grand 
jury?
    Mr. Wainstein. Well, Congressman, I have to go back to what 
Steve Vladeck said. It sort of depends on the circumstances, in 
terms of, you know, who would be in the zone of interest. It 
depends on where the source came from, where the leak came 
from.
    In terms of the reporter, I think that special counsel, at 
least I believe--don't quote me on this--but I believe they may 
not be encumbered by the same regulations.
    Mr. Gowdy. Right.
    Mr. Wainstein. So they might be able to go ahead and 
subpoena the reporter.
    However, they are going to be sensitive to the First 
Amendment concerns, as well. And I wouldn't be surprised if 
that special counsel does try to exhaust other avenues of 
investigation before immediately subpoenaing----
    Mr. Gowdy. Well, and that leads to my final question, which 
is this: Why would the reporter be entitled to any more 
protection than those in the Situation Room or someone who 
worked on the White House staff who may have overheard it? Why 
are we affording--because it is not statutory, and the common 
law is weak as water. Why are you giving more protection to a 
reporter than you are anyone in the Situation Room if they were 
subpoenaed?
    Mr. Wainstein. It is purely--and this has been on the part 
of both Administrations over time--it is a concern with not 
chilling the free press. It is a recognition that reporters 
serve a very important function in our society, and if we start 
subpoenaing them in with regularity, they are going to be less 
energetic in trying to root out information from the 
government.
    And reporters, as you know, reporters serve a very 
important function of disclosing wrongdoing within the 
government, not necessarily secrets, but wrongdoing. So it is a 
balancing act, and that is the reason why those regulations are 
there. That is the reason for the reluctance to just willy-
nilly subpoena reporters in on a regular basis.
    That being said, I firmly support, when the time is right 
and the circumstances justify it, to bring the reporter in, 
especially in a case where there is serious damage to the 
national security.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentlewoman from California, Ms. Chu.
    Ms. Chu. Thank you, Mr. Chair.
    I would like to ask a question to Professor Sales and see 
what Professor Vladeck might think about this afterwards. And 
it is a follow-up on the issue of the press.
    It has been suggested by some critics that one way to ebb 
the flow of classified information is to discourage the press 
from publishing such information by filing criminal charges or 
seeking injunctions from courts. However, both of these 
approaches raise constitutional concerns as it pertains to 
restricting free speech.
    How do we balance the need to keep certain information 
confidential with the importance of upholding free speech and 
freedom of the press?
    Mr. Sales. Thank you, Congresswoman.
    If I had an answer to that question, I would probably be a 
dean instead of a professor. That is the million-dollar 
question.
    There are compelling values on both sides of the ledger. On 
the one hand, the First Amendment is a guarantee not only of 
individual rights to speak and receive information but also a 
profound civic value in favor of open government, debate, and 
democracy. And you can't have that without transparency and 
openness. On the other hand, highly classified and properly 
classified national security information needs to be kept 
secret. If it leaks, we can't wiretap Osama bin Laden. If it 
leaks, sources get caught in the Kremlin and killed. How to 
balance those two different sets of considerations, equally 
vital values pulling in different directions, it is impossible, 
I think, to say in the abstract. I think that question can only 
be resolved in the context of a specific case.
    So in the New York Times case, the famous Pentagon Papers 
case, what kind of information is at stake there? Well, as it 
turns out, the information, though classified, wasn't really 
all that embarrassing anyway. Well, it was embarrassing, but it 
wasn't operational details, ``Here is the name of our source in 
Hanoi.'' Right? It was a history of the U.S. involvement in 
Southeast Asia.
    When balanced against the compelling interest in free 
speech, it is easy to see why information of that minimal 
sensitivity--not no sensitivity, but minimal sensitivity--why 
the balance tilts in favor of the press. But on the other hand, 
information about, you know, the name of the Pakistani doctor 
who assisted us in tracking down Osama bin Laden and who now is 
in jail for 3 decades, that has a much more profound harm to 
the national security, and so the First Amendment equities in 
that case might look very different.
    Ms. Chu. Professor Vladeck?
    Mr. Vladeck. I would just add, I absolutely think this ties 
in nicely with Congressman Gowdy's colloquy with Mr. Wainstein. 
Because I think Mr. Wainstein suggested that the Attorney 
General guideline is there to protect the press. I actually 
think it is also there to protect the government. Because I 
think the more the government goes after the press, the more 
the government is seen as not exercising care and diligence in 
pursuing the press in cases like this, the more the courts, I 
think, will be inclined to step in and protect the press. 
Right? So I think the government builds its credibility for 
cases, along the lines that Professor Sales describes, where it 
might actually really have a strong case by not running to the 
courthouse for a subpoena every single time there looks like 
there is a national security leak.
    I think that the reality is, this balance is impossible to 
strike in the abstract. The closest the Supreme Court has come 
is the accommodation it made in the Pentagon Papers case, which 
is prior restraints are the highest bar and are the most 
disfavored, and after-the-fact prosecutions are a separate 
issue that we will worry about when we get there.
    And I think it says a lot about the national security leaks 
we have weathered over time that there has never been a 
prosecution of a member of the press for violating the 
Espionage Act. You know, that we have never had one I think is 
actually as strong a testament to striking that balance 
carefully as anything I could say.
    Ms. Chu. Uh-huh.
    Professor Vladeck, I also wanted to ask about the question 
of whether we should distinguish between motivations for leaks. 
There are lots of different reasons why a leak could occur. 
Some are motivated by government whistleblowing and seeking to 
raise awareness about an issue or policy. Other leaks indeed 
might be motivated by maliciousness. Still others might be just 
doing a pick of the flattery by a recording reporter.
    How much consideration should be given to understanding the 
motivation behind a leak?
    Mr. Vladeck. It is a great question. I think it really 
depends on what we see as the harm. If the harm is the 
disclosure of the protected information at large, then I think 
motivation is irrelevant. And I think that is part of the 
problem with the Espionage Act the way it is currently crafted. 
That is the premise from which it proceeds, right, that once 
the information is out there in a way that could harm national 
security, it doesn't matter why it is out there.
    I think a more carefully tailored statute could very well 
take into account the kinds of things you suggest. If the goal 
was to reveal waste and fraud or if the goal was to call the 
attention of Americans to an illegal government program, you 
know, perhaps that would be a way to narrow the focus of the 
statute. The problem is, the way the law is right now, there is 
no room for that. And so we can have that conversation here and 
we can have it on the editorial pages but not in the courts.
    Mr. Sensenbrenner. The gentlewoman's time has expired.
    The gentleman from Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And we appreciate the witnesses' being here. We certainly 
do.
    But this Department of Justice policy to get approval from 
the AG himself, I think is where it is coming back to, 
Professor, you had said the AG policy protects not only the 
reporter but also the government. And I keep coming back to, so 
who is protecting the people? I mean, the people are the ones 
that are supposed to be protected.
    How about, who is protecting the soldiers? Okay, we have a 
DOJ policy that protects the AG. It also protects the reporter. 
Who is protecting Navy SEALs? Who is protecting the one that 
gave us the information that got bin Laden? I mean, who is 
protecting those who are helping us? And I am not getting the 
impression that we have anybody doing that right now.
    I know that at this very table we had the Attorney General 
of the United States testify before the full Committee. In his 
words, there are political dimensions to justice. That goes 
against everything every law professor I have ever heard told 
me and taught me. It goes against everything every Democratic 
Party member teacher I had taught me. They knew this country, 
they knew what founded this country, and they, I think, 
instilled it in me.
    And somebody needs to be watching out for the people and 
for the man that is going to do 3 decades in prison unless we 
get firm about stepping up and helping him.
    Now, I would just like to know, if we don't have a special 
prosecutor, who is going to stand up and protect those who are 
out there protecting us?
    And as you are thinking about that, let me just tell you, a 
father of one of the SEAL Team 6 members told me that after--
and we don't have to wonder too far how SEAL Team 6 got 
disclosed, when we saw the Vice President on TV saying 
something like, ``Well, how about that SEAL Team 6? Aren't they 
great? Yeah, let's hear it for them.'' And a father of one of 
the SEAL team members told me that his daughter-in-law, their 
family, got pretty instant military protection because they 
knew that the Vice President had just outed these guys.
    And then when the President picks that up and starts 
talking about SEAL Team 6, and then when you have the Taliban 
target a helicopter with nearly two dozen of SEAL Team 6 
members, who was out there protecting them when the Vice 
President and the President outed SEAL Team 6?
    We know the President can declassify, so there can be no 
prosecution there, but how about in these other cases? Is there 
anybody else that you could propose that would actually be 
looking, not out for the government, not out for the reporter, 
but for the people, for those who are trying to protect us, 
other than a special prosecutor? I would really like to hear 
who it is.
    Mr. Sales. Well, Congressman, I think those are excellent 
points, and that explains why DOJ created this regulation in 
the first place.
    Let's go back to first principles. DOJ recognized that 
sometimes there could be an appearance of impropriety or a 
conflict of interest where the Attorney General and others in 
the Presidential line of command are responsible for 
investigating----
    Mr. Gohmert. Well, let me--because you left this--that is 
why we have ``this regulation.'' Are you talking about the one 
that requires the Attorney General, who believes there are 
political dimensions to justice, that is why we have to get his 
permission? Is that what you are saying? Is that the policy you 
are talking about?
    Mr. Sales. Well, Congressman, what I am saying is that, 
because of the potential for conflict of interest, there is a 
mechanism now for appointing special counsels outside of the 
normal Presidential chain of command to give them a measure of 
independence so that they don't have to get approval from 
superiors in the Justice Department or elsewhere before taking 
certain investigative steps, such as issuing a subpoena to a 
reporter.
    I think the example from 2003 is a very good example of how 
this regulation can work in practice. After it was alleged that 
senior Administration officials----
    Mr. Gohmert. All right, you are going beyond my question. 
My time----
    Mr. Sales. Okay.
    Mr. Gohmert [continuing]. Is running out.
    Let me just also make this point, that this same Attorney 
General has appointed, or asked for an investigation by an 
inspector general at DOJ who got a tape of a conversation with 
a Federal agent, and rather than acting like a true inspector 
general for a potential prosecution down the road, she turns it 
over to the Federal agent, ``You better listen to this before I 
ask you questions.'' We got a real problem in the Department of 
Justice if that is the kind of special investigations we get.
    And my time is up. I yield back.
    Mr. Sensenbrenner. Okay. The Chair will say that after he 
recognizes the gentleman from Georgia, Mr. Johnson, he will 
recognize himself for the last series of questions.
    The gentleman from Georgia, Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    And I am just wondering, where was the moral indignation 
and outrage and the like that has been displayed before us this 
morning, where was that when Valerie Plame, a CIA agent, a 
covert CIA agent, was outed by the previous Administration? 
Where was the indignant outrage?
    Mr. Gohmert. Will the gentleman yield?
    Mr. Johnson. Yes.
    Mr. Gohmert. I was outraged Richard Armitage was not 
prosecuted. He should have been, and I still hope he will be, 
for outing her.
    Mr. Johnson. Reclaiming my time, I am glad to know that 
there was at least one of my colleagues on the other side of 
the aisle that voiced indignation, but I think you may have 
been by yourself on that. And it seems like there was a 
protective covering that was hoisted upon the actors in that 
drama by my colleagues on the other side, but now, you know, we 
want to be more indignant than I think is required.
    Sometimes we have good leaks and sometimes bad leaks. Is 
that correct? I mean, Abu Ghraib was a good leak, and there are 
some leaks that are bad. Would you gentlemen generally agree?
    I see heads shaking, going up and down, so that I think 
that means ``yes'' in America. Is that correct?
    Colonel Allard. No.
    Mr. Johnson. Huh?
    Colonel Allard. No, sir.
    Mr. Johnson. That is not correct? All right.
    Colonel Allard. Sir, as a counterintelligence officer, do 
not tell me there is such a thing as a good leak.
    Mr. Johnson. Well, I guess it depends on where you are 
sitting, though.
    Colonel Allard. I am as opposed to--in a war, I am as 
opposed to the free flow of information as to the free flow of 
sewage, because it can cost lives.
    Mr. Johnson. Well----
    Colonel Allard. They have done so, I think, in this 
instance----
    Mr. Johnson.--I understand, but, I mean, you have some good 
leaks and bad leaks. I don't think you can disagree with that. 
We really needed to learn with Abu Ghraib so that we could 
correct what was going on over there.
    And, you know, the problem is that, you know, sometimes our 
laws can go too far so as to shield free speech. And I think 
that is a conflict that we probably need to address here.
    Those memos, those torture memos written by Deputy 
Assistant Attorney General John Yoo and Assistant Attorney 
General Jay Bybee advised the U.S. Government that acts widely 
regarded as torture might be legally permissible under an 
expansive interpretation of Presidential authority. At least 
one of these memos was leaked to the public, while others were 
obtained through litigation.
    The memos were widely criticized as legally flawed and 
morally indefensible. President Obama repudiated the opinions 
in early 2009. The source of the leak for those memos was never 
found.
    And we have leaks that have occurred throughout every 
Administration that has served in America. Is there any 
particular reason why we should be so dramatically concerned 
about the recent spate of leaks that have occurred?
    Mr. Wainstein. If I could, Congressman, you have put your 
finger on an interesting point, you know, whether there are 
good leaks or bad leaks. And some people will say, look, we 
have to allow some leaks because that is the only way 
information about wrongdoing within the government is going to 
get surfaced.
    But that is not the case. I mean, now Congress, in its 
wisdom, has passed a series of whistleblower-protection laws, 
which say that if you are a whistleblower, in other words you 
are a person within the government, you see something that 
looks like waste, fraud, abuse, or criminal conduct, you can 
take that information up, and in the intelligence community you 
can take it up to the Intelligence Committees in Congress.
    The point being that there is an avenue for surfacing that 
information other than going to the press now. So the argument 
that you need to have press leaks----
    Mr. Johnson. I got you.
    Mr. Wainstein [continuing]. In order to allow that is 
really not the case.
    Mr. Johnson. I got you. Do the whistleblower laws take 
precedence over the espionage statutes?
    Mr. Wainstein. Well, they do. And, in fact, Professor 
Vladeck has spoken to this in today's testimony. There is some 
tension there. But the notion is that if you follow, as a 
government employee, follow the whistleblower-protection 
procedure and disclose things to the right people within the--
--
    Mr. Johnson. Then you will not be prosecuted for----
    Mr. Wainstein. That is the idea. Now, there is a concern. 
Those things have to be sufficiently user-friendly to----
    Mr. Johnson. Is that in the law?
    Mr. Sensenbrenner. The gentleman's time has expired.
    The Chair recognizes himself for 5 minutes for the final 
questions.
    First of all, let me point out that, in the case of the 
Valerie Plame leak, the leak was by an Administration 
supporter. And there was a special counsel appointed, Patrick 
Fitzgerald, who was the U.S. attorney for the Northern District 
of Illinois. And there were some very controversial 
prosecutions involved, which resulted in some convictions. I 
think we all know who was convicted.
    Now, the other thing is that I, you know, agree with 
Colonel Allard, you know, that there is no such thing as a good 
leak. A good leak is one that, you know, you agree with who 
gets damaged in the national security realm, and a bad leak is 
that you disagree with it. Nobody should get damaged in the 
national security realm by a leak.
    And the thing is, if somebody is engaged in misconduct, the 
whistleblower-protection acts do provide for protection of a 
whistleblower who sends the information up the chain of command 
to people who have been cleared, including Members of the 
Senate and House Permanent Select Committee on Intelligence.
    Now, having said all of that, you know, this is a very 
difficult area to legislate in. And I don't think that we have 
the time left in this Congress to be able to deal with the 
various issues.
    First, I agree with Professor Vladeck that the Espionage 
Act of 1917 is outdated. You know, the type of espionage that 
this country faces now is not the type of espionage that German 
spies did in the march to World War I. Though I would point out 
that there were a whole package of laws that Woodrow Wilson got 
passed, including the Sedition Act, which resulted in one of my 
predecessors as the representative of the Fifth District of 
Wisconsin getting excluded from Congress twice, getting 
reelected by a constituency that Mr. Wilson decided--or the 
constituency that decided that Mr. Wilson chose the wrong side 
to fight for in the First World War, and he spent some time as 
a sitting Member of Congress sitting in jail for sedition. So, 
you know, it seems to me that, you know, the history of those 
kinds of acts mean that we have to update them.
    I am not for having an Official Secrets Act like occurs in 
the United Kingdom, but I am for revising standards for 
classification. And there ought to be some type of almost 
strict liability on someone who deliberately leaks something 
that he or she knows to be classified to somebody who does not 
have a security classification.
    And, finally--and this is the question that I would like to 
ask, and we will start with you, Mr. Wainstein. Are there any 
circumstances where putting a reporter in jail for publishing a 
leak are permissible under the First Amendment?
    Mr. Wainstein. I believe so.
    Mr. Sensenbrenner. And what are----
    Mr. Wainstein. I believe, actually, you can look at the 
iconic case, speaking of Midway, where the Chicago Tribune 
actually published the fact that we had broken the Japanese 
code in 1942, which could have been devastating to our war 
effort and could have resulted in the loss of thousands, if not 
tens of thousands, more American lives. Under certain 
circumstances, you could see that if someone had done that with 
impunity and knowledge of the consequences and gone ahead and 
published it, that is something that I think would be worthy of 
prosecution and punishment.
    Mr. Sensenbrenner. You know, how about prosecution and 
punishment for those that disclosed it was SEAL Team 6 that 
actually went in and took out bin Laden? Is that the same 
thing?
    Mr. Wainstein. Sir, it depends on the facts and the 
consequences. I really couldn't, sort of, opine on it because 
I--in retrospect, I can see what it would have done to World 
War II. It is hard for me to know whether the fact that SEAL 
Team 6 that operates in secret, whether it is going to suffer 
the same damage or not, and also the intent behind the leak. 
That is a--you know, that is a serious leak, though, something 
that should be----
    Mr. Sensenbrenner. Okay.
    Mr. Wainstein [continuing]. Seriously looked at by a 
prosecutor.
    Mr. Sensenbrenner. Well, you know, here we are talking 70 
years after the fact of the leak on the Japanese codes on 
Midway. Perhaps 70 years from now, we will be talking in this 
Committee about the leaks on SEAL Team 6, which I think 
emphasizes the fact that we do need to update the laws.
    Professor Sales----
    Mr. Wainstein. If I could, Mr. Chairman, just----
    Mr. Sensenbrenner. Okay.
    Mr. Wainstein [continuing]. Keep in mind, the distinction 
between punishing and prosecuting the newspaper reporter, that 
is a very different issue from prosecuting and punishing the 
leaker. And, you know, to your question as to whether you 
should put the reporter in jail, that is a bigger step.
    Mr. Sensenbrenner. Okay.
    Professor Sales, and then--my time is already up, but--
well, answer the question.
    Mr. Sales. Gladly.
    I think the answer to the question is ``yes, comma, it 
depends.'' There are circumstances in which it certainly would 
be constitutionally permissible to hold reporters to the same 
criminal law standards that every other citizen in the United 
States is expected to follow.
    In fact, the Supreme Court in the Pentagon Papers case 
recognized that there may be circumstances in which it would be 
consistent with the First Amendment to apply the terms of the 
Espionage Act to reporters that publish classified information.
    Mr. Sensenbrenner. Thank you very much.
    And I would like to thank all of the witnesses for 
appearing, you know, in I think what is a very interesting 
hearing that has a lot of interrelated and difficult policy 
questions involved.
    I, frankly, think that in the next Congress this Committee 
should take a whack at trying to put something together that 
updates the law and attempting to balance competing interests 
and how they interrelate with each other, recognizing the fact 
that at least at the beginning of this process everybody will 
come in and testify against something that is in the law. But I 
think it is unacceptable to keep relying on the 1917 act to 
deal with the issue of leaks, as well as the issue of 
espionage, because espionage now is a lot different than it was 
in the First World War.
    That having been said, thank you all for coming.
    And, without objection, the hearing is adjourned.
    [Whereupon, at 11:36 a.m., the Subcommittee was adjourned.]

                                 
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