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Examining Doj's Investigation of Journalists Who Publish Classified Information: Lessons from the Jack Anderson Case

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Examining Doj's Investigation of Journalists Who Publish Classified Information: Lessons from the Jack Anderson Case S. HRG. 109–838 EXAMINING DOJ’S INVESTIGATION OF JOURNAL- ISTS WHO PUBLISH CLASSIFIED INFORMATION: LESSONS FROM THE JACK ANDERSON CASE HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION JUNE 6, 2006 Serial No. J–109–81 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 33–835 PDF WASHINGTON : 2007 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, JR., Delaware MIKE DEWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma MICHAEL O’NEILL, Chief Counsel and Staff Director BRUCE A. COHEN, Democratic Chief Counsel and Staff Director (II) VerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 13 Grassley, Hon. Charles E., a U.S. Senator from the Stae of Iowa, prepared statement .............................................................................................................. 139 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement .............................................................................................................. 141 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1 WITNESSES Anderson, Kevin, Fabian and Clendenin, Salt Lake City, Utah ......................... 18 Feldstein, Mark, Director of Journalism Program, and Associate Professor of Media and Public Affairs, School of Media and Public Affairs, George Washington University, Washington, D.C. ........................................................ 26 Friedrich, Matthew W., Chief of Staff and Principal Deputy Assistant Attor- ney General, Criminal Division, Department of Justice, Washington, D.C. ... 3 Schoenfeld, Gabriel, Senior Editor, Commentary, New York, New York ........... 23 Smolla, Rodney, Dean, University of Richmond School of Law, Richmond, Virginia ................................................................................................................. 21 QUESTIONS AND ANSWERS Responses of Kevin Anderson to questions submitted by Senator Specter ........ 39 Responses of Mark Feldstein to questions submitted by Senator Specter ......... 45 Responses of Matthew Friedrich to questions submitted by Senators Specter and Leahy ............................................................................................................. 49 Responses of Gabriel Schoenfeld to questions submitted by Senator Specter .... 68 Responses of Rodney Smolla to questions submitted by Senator Specter .......... 76 SUBMISSIONS FOR THE RECORD Anderson, Kevin, Fabian and Clendenin, Salt Lake City, Utah, statement and attachment .................................................................................................... 81 Associated Press, Mark Sherman, Washington, D.C., April 18, 2006, article .... 90 Baltimore Sun: April 20, 2006, editorial ................................................................................... 92 April 22, 2006, article ....................................................................................... 93 CBS News, Washington, D.C., April 19, 2006, article .......................................... 95 CBS Worldwide Inc., Washington, D.C., April 19, 2006, article .......................... 97 Chicago Tribune, April 23, 2006, article ................................................................ 99 CNN, Washington, D.C., April 20, 2006, transcript ............................................. 101 Editor & Publisher, New York, New York, article ................................................ 106 Feldstein, Mark, Director of Journalism Program, and Associate Professor of Media and Public Affairs, School of Media and Public Affairs, George Washington University, Washington, D.C., prepared statement ..................... 107 Frankel, Max, New York, New York, letter and attachment ............................... 116 Friedrich, Matthew W., Chief of Staff and Principal Deputy Assistant Attor- ney General, Criminal Division, Department of Justice, Washington, D.C., prepared statement .............................................................................................. 135 Guardian, April 21, 2006, article ............................................................................ 140 Los Angeles Times, Nick Timiraos, April 19, 2006, article .................................. 143 Miami Herald: April 24, 2006 ................................................................................................... 144 May 2, 2006 ....................................................................................................... 145 (III) VerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC IV Page New York Times, April 19, 2006, article ............................................................... 147 National Public Radio (NPR), Washington, D.C.: April 19, 2006, transcript ................................................................................. 149 April 23, 2006, transcript ................................................................................. 151 Presstime, Arlington, Virginia, May 2006, article ................................................ 152 Red Bluff Daily News, April 22, 2006, editorial .................................................... 158 Salt Lake Tribune, Salt Lake, Utah, article .......................................................... 159 San Francisco Chronicle, April 25, 2006, article ................................................... 161 Schoenfeld, Gabriel, Senior Editor, Commentary, New York, New York, state- ment and attachments ......................................................................................... 163 Seattle Post-Intelligencer, April 20, 2006, article ................................................. 204 Smolla, Rodney, Dean, University of Richmond School of Law, Richmond, Virginia, statement .............................................................................................. 205 Star-Ledger, Newark, New Jersey, April, 22, 2006, article ................................. 221 TPM Muckraker.com, April 19, 2006, article ........................................................ 222 Times-Tribune, Scranton, Pennsylvania, April 20, 2006, article ......................... 224 Wall Street Journal, April 19, 2006, article .......................................................... 225 Washington Post: April 19, 2006, article ....................................................................................... 226 April 20, 2006, editorial ................................................................................... 227 April 25, 2006, article ....................................................................................... 228 April 29, 2006, commentary ............................................................................. 229 VerDate 0ct 09 2002 08:52 Jun 28, 2007 Jkt 033835 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\33835.TXT SJUD1 PsN: CMORC EXAMINING DOJ’S INVESTIGATION OF JOUR- NALISTS WHO PUBLISH CLASSIFIED INFOR- MATION: LESSONS FROM THE JACK ANDER- SON CASE TUESDAY, JUNE 6, 2006 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. The Committee met, pursuant to notice, at 9:30 a.m., in room SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Specter, Grassley, Kyl, Leahy, and Feingold. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman SPECTER. It is 9:30, so the Judiciary Committee will proceed with this hearing on the subject of examining the efforts by the Department of Justice to control leaks by newspapers in- volving classified information. We know that leaks are a fact of life in Washington, D.C., and really virtually everywhere. There is an old adage that the ship of state leaks at the top, and we saw recently that it was true with the President of the United States making a disclosure. There are very important national security interests involved in maintaining the sanctity of classified information. At the same time, there is a tradition of ferreting out governmental wrongdoing—waste, corrup- tion, inefficiency—by disclosures to the press, which function as the guardians of the public in many, many cases. Leaks are made for a variety of reasons, and while they have a very important social purpose, they also have the potential for harmful, deleterious ef- fects on national security. This hearing will be looking into one aspect of expanding Execu- tive authority, which we have seen in recent times with the warrantless
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