2010-12-21 WikiLeaks / Espionage Act Hearing: Testimony of Gabriel Schoenfeld

Testimony of Gabriel Schoenfeld *

Schoenfeld's 5 Assumptions:
  1. Thanks to The First Amendment, The Freedom of Information Act, The Presidential Records Act and the "unfettered press", America is a "wide-open society" in which citizens are extremely well-informed, relative to other nations, about "what our government does in our name".

  2. Despite 1, there is too much secrecy; there is too much mis- and over-classification.

  3. Due in part to 2, "the leaking of secret information to the press has become part of the normal, informal process by which the American people are kept informed."
    (To demonstrate this, Schoenfeld refers to a study conducted by the Senate Intelligence Committee, in which it was shown that within just a 6 month period, 147 disclosures of classified information made their way into the mainstream media (in 8 major media sources reviewed). "None of these leaks resulted in legal proceedings.")

  4. Much of the leaked information is "innocuous and/or authorized". Bob Woodward's recent book ("Obama's Wars") contains code names and "descriptions of classified programs". No legal proceedings resulted and no damage to national security resulted from these leaks, "perhaps because the only damage done was to the integrity of the secrecy system itself." As we will see, Schoenfeld is not satisfied with the integrity of this system.

  5. Even unauthorized and damaging leaks have not, in the past, led to prosecution.
    (For instance, in June 2006, the New York Times published a front-page story revealing details of a secret CIA-Treasury Department program that was being used to track al Qaeda and Taliban funds. Both Republicans and Democrats agreed that as a result of the New York Times story, al Qaeda and the Taliban are now in a better position to make private fund transfers through the use of alternative methods, like untraceable money-grams and couriers. Yet despite the damage done by this disclosure of secret information, the New York Times was not legally pursued.)
Schoenfeld's 5 Solutions:
  1. America needs fewer (spurious) secrets so that the "truly necessary secrets" can be kept safe. This refers to the problems of misclassification and overclassification.

  2. America needs to provide whistleblowers with "viable avenues" for voicing their concerns so that they won't have to resort to using organizations like Wikileaks or even the mainstream media.

  3. America needs to "re-establish deterrence" by prosecuting individuals in government that leak sensitive information. Schoenfeld commends the Obama administration for having punished leakers, which, he notes, is a rarity.

  4. America needs to publicly condemn and reprimand the media when vital secrets are disclosed.

  5. "We sometimes need to take legal action." America should have done this in 1942, during WWII, when the Chicago Tribune revealed that America had broken Japanese Naval Codes.

    In Schoenfeld's opinion, The First Amendment should not protect this behavior. He clearly implies that the Chicago Tribune should have been legally pursued.

  • Prosecution for disclosure of highly sensitive information should be a last resort but it should be more common, even in the case of journalists.

  • The First Amendment should not be interpreted as defending whistlenlowers or journalists that show "reckless disregard" for the safety of the American people.

  • Wikileaks has certainly shown such reckless disregard in producing "LMDs" -- "Leaks of Mass Disclosure".

  • "The purpose of" Wikileaks' activity in disclosing sensitive information about America, in Schoenfeld's opinion, is to "cripple [the American] government".

  • Hence Wikileaks should be prosecuted, irrespective of whether it is, properly speaking, a journalistic endeavor.

Witness Information:
Gabriel Schoenfeld, Ph.D.
Senior Fellow
Hudson Institute
New York, NY

Written Statement (pdf)
Video Transcript (Youtube)




Testimony of Kenneth L. Wainstein

Opening Statements from John Conyers Jr., William Delahunt, Ted Poe + Testimony of Abbe D. Lowell