[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.]