Espionage Act

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.")

Testimony of Kenneth L. Wainstein (Editor's note)

Assumptions made (stated as fact) by Wainstein:

1. Wikileaks discloses "sensitive information" in a "mass and indiscriminate" manner.
2. The sensitive information leaked through Wikileaks is "not newsworthy".
3. In virtue of 1, Wikileaks poses a threat to National Security that is more serious than that posed by the disclosure of sensitive information by the mainstream media.
4. Wikileaks activities do not qualify as traditional journalistic reporting.
5. Charging Wikileaks as a journalistic organization with espionage under the existing laws would pose a thread to "the free press", as defined in terms of an organization that practices traditional journalism.
6. There's an urgent need to suppress leaks that pose a threat to national security.
7. The proposed Shield Act is unconstitutional.

The 2 questions on the table, in Wainstein's view, are:

1. Whether to prosecute Wikileaks;
2. Whether to revise the existing laws relating to the current Espionage Act.

Wainstein's answer to the second question is yes. The laws should be revised. Current laws must be clarified in a manner that more accurately reflects the particularities of new Internet-related methods of disseminating information in the 21st Century.

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

Opening Statements

• Chairman John Conyers Jr.
• Rep. William Delahunt
• Rep. Ted Poe

Testimony

• Abbe D. Lowell

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