2010-12-19 WikiLeaks / Espionage Act Hearing: Conyers, Delahunt, Poe, Lowell

House Judiciary Committee Hearing on the Espionage Case and the Legal and Constitutional Issues Raised by Wikileaks [1]

Opening Statements



Opening Statements: Notable Excerpts and Main Points

Chairman John Conyers, Jr.

Conyers begins with reference to the 1989 case of Texas v. Johnson, the Supreme Court (a flag burning case). This case "set forth one of the fundamental principles of our democracy." Here, Conyers quotes Justice Brennan:

“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.” [2] Background


Rep. William Delahunt

  • Parameters do have to be set on leaks that put people at risk.
  • There is an overclassification problem. [3]
  • It's difficult to ascertain who decides on levels of classification. The present focus on Wikileaks provides the opportunity to finally discuss the classification process, and this is important because the secrecy inherent in this system puts democracy itself at risk.
  • There is no accountability in the process of classification within the executive branch. This is dangerous because "secrecy is the trademark of totalitarianisn; to the contrary, transparency and openness is what democracy is about."


Rep. Ted Poe

"...we gotta find the original leak. And what caused it, who did it, and hold him accountable. Other issues that this brings forth is that after 9/11, the big talk was, we need to share information with different agencies in the United States government because we don't know what one agency's doing or knows. It should be shared."

"So now we have mass sharing, and now we seem like we're gonna move away from that because of this situation... I have no sympathy for the alledged thief in this situation... he's no better than a Texas pawn shop dealer than deals the stolen merchandise and sells it to the highest bidder... but he's doing it for political gain."

"But on the other hand, I'm very worried about our own overclassification of information. The easiest way for a government agency to take information is to say it's classified. Only special folks get to know what's in it."

He then goes on to say that someone decides it's classified, but it's available in the media so it isn't classified. "And then you have that problem of the whole overclassification of documents."

His second point:

"The security of our information is important. And those who allowed this to occur, by incompetence, negligence or whatever, we have to fix that problem."

"I'm very concerned about that because of the fact that... we're the greatest powerfulest nation that ever existed and we need to [ration?] our security to keep hackers from getting into it, and why did this occur? And who ... made this situation go world-wide... it's like a bunch of people decide to hold a Christmas party down the street and they all take off and leave the vault open."


Testimony: Notable Excerpts and Main Points on the Espionage Act

Abbe D. Lowell

The Espionage Act: History and Present

After WWII, a proposal was made "to enact legislation prohibiting the disclosure of any classified information." The proposal did not pass, but instead, Congress passed Section 798 of the current Espionage Act (18 U.S.C. §798). According to Lowell, Section 798 suffers from several crippling problems. We will review these here.

Section 768 criminalizes "knowingly" and "willfully" communicating, furnishing, transmitting, publishing, using or otherwise 'making available' to any "unauthorized person" any information that happens to be “in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States."


Goals of an Adequate Espionage Act

Lowell concedes that there is a need for a strong criminal law to address issues of real spying in which classified information is released “with the intent to injure the United States or to assist an adversary”.

Furthermore, there needs to be a law governing the improper handling of classified information that is properly defined as classified. This must be weighed against the need to protect important constitutional rights.

Overclassification refers to the process of mis-labelling information as "classified" when it really isn't classified. This is important to consider when we face the consequence that disclosure of such information can be easily criminalized by the existing law.

  • As one saying goes: “when everything is classified, nothing really is classified.”

...it is no secret that the government classifies too much information.

Interestingly, some government agencies go as far as to "classify newspaper articles and other public domain materials". Lowell recognizes that this is wrong. Some information is improperly categorized as classified. In the case of Wikileaks, information was leaked that was categorized as classified "presumably because it may be embarrassing to someone." This is an improper use of the classified category.


Problems with the Existing Espionage Act

- Section 768 was passed in 1950 and reflects an outdated world view; Lowell points out that it refers "to the way the world worked 50 years ago."

- The statute uses outdated language referring to vague concepts like “communication,” “publication,” and “use”. These terms had a very different meaning in 1950:

"[D]igital technology and the Internet have significantly blurred, if not entirely erased, the lines between “communicating,” "publishing,” and “using” information."

- Ambiguity is a further problem. According to Lowell,

[t]he statute is ambiguous as to whether it requires a prosecutor to prove that each of the enumerated activities – such as communication or publication of the information – must be to the prejudice or detriment of the United States.

The ambiguity stems from the fact that if we interpret the statute in the most natural way (at face value), then in order to convict someone who has communicated or published the said information, a prosecutor only has to show that the information was classified.

What of a defendant who is charged with using the information? In that case, a conviction will require only that the prosecutor demonstrates "a risk of harm". As Lowell notes,

  • This interpretation raises First Amendment concerns because it lets a jury convict someone for publishing classified information without any evidence of potential harm to national security.

- Espionage laws are currently so broad that they apply to a government employee who signed a confidentiality agreement. This, in Lowell's view, is clearly wrong. Hence the laws must be modified.

- Current espionage laws also apply to a foreign policy analyst and who discusses with that government employee what s/he knows.

- Furthermore, the laws would also have us convict a reporter for espionage who overheard the conversation between these two individuals. The laws, therefore, require close scrutiny.

- Lowell tells the committee members that "they should know better" than to pass a new criminal law when the current issue is "headline news", and when constitutional rights are at stake.



[1] House Judiciary Committee Hearing on the espionage case and the legal and constitutional issues raised by Wikileaks

[2] Background: The issue before the court in the case from which Justice Brennan was quoted was that of whether burning the American Flag within the context of a public protest constitute "expressive conduct," an idea that falls under the freedom of speech protection of the First Amendment?

The United States holds itself up to be the nation where human freedom finds its purest expression. Thomas Jefferson expressed this ideal in the Declaration of Independence when he penned the words:

"We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness." More

[3] Over-classification refers to the process of mis-labelling information as "classified" when it really isn't classified. This is important to consider when we face the consequence that disclosure of such information can be easily criminalized by the existing law.



Testimony of Kenneth L. Wainstein

Testimony of Gabriel Schoenfeld