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Statement of Geoffrey R. Stone Edward H Statement of Geoffrey R. Stone Edward H. Levi Distinguished Service Professor of Law The University of Chicago Hearing on the Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks Committee on the Judiciary United States House of Representatives December 16, 2010 The proposed SHIELD Act1 would amend the Espionage Act of 19172 to make it a crime for any person knowingly and willfully to disseminate, in any manner prejudicial to the safety or interest of the United States, “any classified information . concerning the human intelligence activities of the United States or . concerning the identity of a classified source or informant” working with the intelligence community of the United States. Although the Act might be constitutional as applied to a government employee who “leaks” such classified material, it is plainly unconstitutional as applied to other individuals who might publish or otherwise disseminate such information. With respect to such other individuals, the Act violates the First Amendment unless, at the very least, it is expressly limited to situations in which the individual knows that the dissemination of the classified material poses a clear and present danger of grave harm to the nation. The clear and present danger standard, in varying forms, has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes first enunciated it in his 1919 opinion in Schenk v. United States.3 In the 90 years since Schenck, the precise meaning of “clear and present danger” has shifted,4 but the principle that animates the standard was stated eloquently by Justice Louis D. Brandeis in his brilliant 1927 concurring opinion in Whitney v. California:5 Those who won our independence by revolution were not cowards. They did not exalt order at the cost of liberty. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such . is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech . by showing that there was no emergency justifying it. With that observation in mind, I will examine two central questions: (1) Does the clear and present danger standard apply to unlawful leaks of classified information by public employees? (2) Does the clear and present danger standard apply to the dissemination of classified information derived from those unlawful leaks? These are fundamental First Amendment questions. Before turning to them, though, a bit of historical context is necessary. 1 H.R. 2695, 111th Cong., 2d Sess. (2010). 2 18 U.S.C. 798 3 Schenck v. United States, 249 U.S. 47, 52 (1919). 4 See Frank Strong, Fifty Years of “Clear and Present Danger”: From Schenck to Brandenburg – and Beyond, 1969 Sup. Ct. Rev. 41. Compare Schenk v. United States, 249 U.S. 47, 52 (1919); Dennis v. United States, 341 U.S. 494 (1951); Brandenburg v. Ohio, 395 U.S. 444 (1969); and New York Times v. United States, 403 U.S. 713 (1971). See generally Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from 1790 to the War on Terrorism (W. W. Norton 2004). 5 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). 1 I. National Security and Free Speech A wartime environment inevitably intensifies the tension between individual liberty and national security. But there are wise and unwise ways to strike the appropriate balance. Throughout American history, our government has excessively restricted public discourse in the name of national security. In 1798, for example, on the eve of a threatened conflict with France, Congress enacted the Sedition Act of 1798, which effectively made it a crime for any person to criticize the president, the Congress or the government itself.6 During the Civil War, the government shut down “disloyal” newspapers and imprisoned critics of the president’s policies.7 During World War I, the government enacted the Espionage Act of 1917 and the Sedition Act of 1918, which made it unlawful for any person to criticize the war, the draft, the government, the president, the flag, the military, or the cause of the United States, with the consequence that free and open debate was almost completely stifled.8 And during the Cold War, as Americans were whipped up to frenzy of fear of the “Red Menace,” loyalty programs, political infiltration, blacklisting, legislative investigations, and criminal prosecutions of supposed Communist “subversives” and sympathizers swept the nation.9 Over time, we have come to understand that these episodes from our past were grievous errors in judgment in which we allowed fear and anxiety to override our good judgment and our essential commitment to individual liberty and democratic self- governance. Over time, we have come to understand that, in order to maintain a robust system of democratic self-governance, our government cannot constitutionally be empowered to punish speakers, even in the name of “national security” without a compelling justification.10 And this is especially true in the realm of government secrets, for as James Madison observed, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both.”11 As Madison warned, if citizens do not know what their own government is doing, then they are hardly in a position to question its judgments or to hold their elected representatives accountable. Government secrecy, although sometimes surely necessary, can also pose a direct threat to the very idea of self-governance. 6 See Geoffrey R. Stone, War and Liberty: An American Dilemma 1-21 (W. W. Norton 2007). 7 See id., at 22-40. 8 See id., at 41-63. 9 See id., at 85-106. 10 See Stone, Perilous Times at 550-558 (cited in note 4). 11 James Madison, The Writings of James Madison (1822), Gaillard Hunt, ed., G. P. Putnam’s Sons (1910). 2 II. The Dilemma Here, then, is the dilemma: The government often has exclusive possession of information about its policies, programs, processes, and activities that would be of great value to informed public debate. But government officials often insist that such information must be kept secret, even from those to whom they are accountable – the American people. How should we resolve this dilemma? The issue is complex, and has many dimensions. The reasons why government officials want secrecy, for example, are many and varied. They range from the truly compelling to the patently illegitimate. Sometimes, government officials may want secrecy because they fear that the disclosure of certain information might seriously undermine the nation’s security (for example, by revealing detailed battle plans on the eve of battle). Sometimes, they may want secrecy because they simply do not want to deal with public criticism of their decisions, or because they do not want the public, the Congress, or the courts to be in a position to override their decisions, which they believe to be sound. Sometimes, they may want secrecy because disclosure will expose their own incompetence or foolishness or wrongdoing. Some of these reasons for secrecy are obviously much more worthy of respect than others. Part of the problem is that government officials who want secrecy for questionable reasons are often tempted to “justify” their actions by putting forth seemingly compelling, but in reality exaggerated or even disingenuous, justifications. Adding to the complexity, the contribution of any particular disclosure to informed public discourse may vary widely depending upon the nature of the information and the surrounding circumstances. The disclosure of some classified information may be extremely valuable to public debate (for example, the revelation of possibly unwise or even unlawful or unconstitutional government programs, such as the secret use of coercive interrogation or the secret authorization of widespread electronic surveillance). The disclosure of other confidential information, however, may be of little or no legitimate value to public debate (for example, the publication of the specific identities of covert American agents in Iran for no reason other than exposure). The most vexing problem arises when the public disclosure of secret information is both harmful to the national security and valuable to self-governance. Suppose, for example, the government undertakes a study of the effectiveness of security measures at the nation’s nuclear power plants. The study concludes that several nuclear power plants are especially vulnerable to terrorist attack. Should this study be kept secret or should it be disclosed to the public? On the one hand, publishing the report will reveal our vulnerabilities to terrorists. On the other hand, publishing the report would alert the public to the situation, enable citizens to press government officials to remedy the problems, and empower the public to hold accountable those public officials who failed to keep them safe. The public disclosure of such information could both harm and benefit the nation. Should the study be made public? 3 In theory, this question can be framed quite simply: Do the benefits of disclosure outweigh its costs? That is, does the value of the disclosure to informed public deliberation outweigh its danger to the national security? Alas, as a practical matter this simple framing of the issue is not terribly helpful. It is exceedingly difficult to measure in any objective, consistent, predictable, or coherent manner either the “value” of the disclosure to public discourse or its “danger” to
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