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Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks

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Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks ESPIONAGE ACT AND THE LEGAL AND CONSTITUTIONAL ISSUES RAISED BY WIKILEAKS HEARING BEFORE THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED ELEVENTH CONGRESS SECOND SESSION DECEMBER 16, 2010 Serial No. 111–160 Printed for the use of the Committee on the Judiciary ( Available via the World Wide Web: http://judiciary.house.gov U.S. GOVERNMENT PRINTING OFFICE 63–081 PDF WASHINGTON : 2011 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) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Aug 31 2005 13:42 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 H:\WORK\FULL\121610\63081.000 HJUD1 PsN: DOUGA COMMITTEE ON THE JUDICIARY JOHN CONYERS, JR., Michigan, Chairman HOWARD L. BERMAN, California LAMAR SMITH, Texas RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, JR., JERROLD NADLER, New York Wisconsin ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina ELTON GALLEGLY, California ZOE LOFGREN, California BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California MAXINE WATERS, California DARRELL E. ISSA, California WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia STEVE COHEN, Tennessee STEVE KING, Iowa HENRY C. ‘‘HANK’’ JOHNSON, JR., TRENT FRANKS, Arizona Georgia LOUIE GOHMERT, Texas PEDRO PIERLUISI, Puerto Rico JIM JORDAN, Ohio MIKE QUIGLEY, Illinois TED POE, Texas JUDY CHU, California JASON CHAFFETZ, Utah TED DEUTCH, Florida TOM ROONEY, Florida LUIS V. GUTIERREZ, Illinois GREGG HARPER, Mississippi TAMMY BALDWIN, Wisconsin CHARLES A. GONZALEZ, Texas ANTHONY D. WEINER, New York ADAM B. SCHIFF, California LINDA T. SA´ NCHEZ, California DANIEL MAFFEI, New York JARED POLIS, Colorado PERRY APELBAUM, Majority Staff Director and Chief Counsel SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel (II) VerDate Aug 31 2005 13:42 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 H:\WORK\FULL\121610\63081.000 HJUD1 PsN: DOUGA C O N T E N T S DECEMBER 16, 2010 Page OPENING STATEMENTS The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Chairman, Committee on the Judiciary ..................... 1 The Honorable Louie Gohmert, a Representative in Congress from the State of Texas, and Member, Committee on the Judiciary ........................................ 3 The Honorable William D. Delahunt, a Representative in Congress from the State of Massachusetts, and Member, Committee on the Judiciary ......... 4 The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Member, Committee on the Judiciary ......................... 5 The Honorable Charles A. Gonzalez, a Representative in Congress from the State of Texas, and Member, Committee on the Judiciary .............................. 5 The Honorable Ted Poe, a Representative in Congress from the State of Texas, and Member, Committee on the Judiciary ............................................. 5 WITNESSES Mr. Geoffrey R. Stone, Professor and former Dean, University of Chicago Law School Oral Testimony ..................................................................................................... 6 Prepared Statement ............................................................................................. 9 Mr. Abbe David Lowell, Partner, McDermott Will & Emery, LLP Oral Testimony ..................................................................................................... 22 Prepared Statement ............................................................................................. 25 Mr. Kenneth L. Wainstein, Partner, O’Melveny & Myers, LLP Oral Testimony ..................................................................................................... 39 Prepared Statement ............................................................................................. 41 Mr. Gabriel Schoenfeld, Ph.D., Senior Fellow, Hudson Institute Oral Testimony ..................................................................................................... 48 Prepared Statement ............................................................................................. 50 Mr. Stephen I. Vladeck, Professor of Law, American University Oral Testimony ..................................................................................................... 66 Prepared Statement ............................................................................................. 69 Mr. Thomas S. Blanton, Director, National Security Archive, George Wash- ington University Oral Testimony ..................................................................................................... 74 Prepared Statement ............................................................................................. 77 Mr. Ralph Nader, Legal Advocate and Author Oral Testimony ..................................................................................................... 87 (III) VerDate Aug 31 2005 13:42 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 H:\WORK\FULL\121610\63081.000 HJUD1 PsN: DOUGA VerDate Aug 31 2005 13:42 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 H:\WORK\FULL\121610\63081.000 HJUD1 PsN: DOUGA ESPIONAGE ACT AND THE LEGAL AND CON- STITUTIONAL ISSUES RAISED BY WIKI- LEAKS THURSDAY, DECEMBER 16, 2010 HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, pursuant to notice, at 10:05 a.m., in room 2141, Rayburn House Office Building, the Honorable John Conyers, Jr. (Chairman of the Committee) presiding. Present: Representatives Conyers, Scott, Jackson Lee, Delahunt, Johnson, Quigley, Gutierrez, Schiff, Sensenbrenner, Coble, Gallegly, Goodlatte, King, Frank, Gohmert, Poe, and Harper. Staff Present: (Majority) Perry Apelbaum, Staff Director and Chief Counsel; Elliot Mincberg, Counsel; Sam Sokol, Counsel; Joe Graupensberger, Counsel; Nafees Syed, Staff Assistant; (Minority) Caroline Lynch, Counsel; Kimani Little, Counsel; and Kelsey Whitlock, Clerk. Mr. CONYERS. Good morning. The hearing on the Espionage case and the legal and constitutional issues raised by WikiLeaks before the Committee on Judiciary is now about to take place. We wel- come everyone here to the hearing. In the Texas v. Johnson case in 1989, the Supreme Court set forth one of the fundamental prin- ciples of our democracy. That is, that if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. That was Justice William Brennan. Today the Committee will consider the WikiLeaks matter. The case is complicated, obviously. It involves possible questions of national security, and no doubt im- portant subjects of international relations, and war and peace. But fundamentally, the Brennan observation should be instructive. As an initial matter, there is no doubt that WikiLeaks is in an unpopular position right now. Many feel their publication was of- fensive. But unpopularity is not a crime, and publishing offensive information isn’t either. And the repeated calls from Members of Congress, the government, journalists, and other experts crying out for criminal prosecutions or other extreme measures cause me some consternation. Indeed, when everyone in this town is joined together calling for someone’s head, it is a pretty sure sign that we might want to slow down and take a closer look. And that is why it was so encouraging (1) VerDate Aug 31 2005 13:42 Feb 02, 2011 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\FULL\121610\63081.000 HJUD1 PsN: DOUGA 2 to hear the former Office of Legal Counsel, Jack Goldsmith, who served under George W. Bush caution us only last week. And he said, I find myself agreeing with those who think Assange is being unduly vilified. I certainly do not support or like his disclosure of secrets that harm U.S. national security or foreign policy interests. But as all the handwringing over the 1917 Espionage Act shows, it is not obvious what law he has violated. Our country was founded on the belief that speech is sacrosanct, and that the answer to bad speech is not censorship or prosecution, but more speech. And so whatever one thinks about this con- troversy, it is clear that prosecuting WikiLeaks would raise the most fundamental questions about freedom of speech about who is a journalist and about what the public can know about the actions of their own government. Indeed, while there’s agreement that sometimes secrecy is nec- essary, the real problem today is not too little secrecy, but too much secrecy. Recall the Pentagon papers case, Justice Potter Stewart put it, when everything is classified, nothing is classified. Rampant overclassification in the U.S. system means that thou- sands of soldiers, analysts and intelligence officers need access to huge volumes of purportedly classified material. And that nec- essary access in turn makes it impossible to effectively protect truly vital secrets. One of our panelists here today put it perfectly in a recent ap- pearance. He explained, our problem with our security system, and why Bradley Manning can get his hands on all these cables, is we got low fences around a vast prairie because the government classi- fies just about everything. What we really need are high fences around a small graveyard of what is really sensitive.
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