House Judiciary Committee Hearing

In his testimony before the Judiciary Committee, Wainstein falls prey to a few fallacies of reason and, strangely, ignores a handful of facts; he fails to address these facts at all and even assumes they are false. This could be a result of the fact that he is either not well-informed, or being dishonest. I do not take a stance on which of these is the case but sincerely hope that the evidence will be taken into account in the event of an espionage trial for Wikileaks.

1. Wainstein: Wikileaks discloses "sensitive information" in a "mass and indiscriminate" manner.

• In fact, this is false, In the latest leak, Wikileaks less than 4% of 251,297 diplomatic cables. Wikileaks has been selective in the process of publishing these sensitive materials, and has done so with the cooperation of many respected media outlets. One reason for this attitude is that Wikileaks does not wish to put lives in danger. The goal is, in fact, to save lives by revealing the questionable activities that have led to innumerable casualties. This is far from reckless activity on the part of Wikileaks.
• In the case of the Afghanistan war leak, Wikileaks approached the Pentagon for help in redacting names and other potentially life-threatening information from the documents. This request was put in prior to the publication of the leaked documents. The Pentagon first denied receiving any such request, but declined subsequently admitted that it had refused to help. Nevertheless, names were redacted, with the help of media outlets. This activity does not constitute "mass and indiscriminate leaking."

More information on the harm minimization process.

2. The sensitive information leaked through Wikileaks is "not newsworthy".

• While it is true that some of the leaked cables contain information that is merely embarrassing to various government leaders, it is also true that the leaks have unveiled an abundance of damning evidence indicating an urgent need for change and action. Evidence strongly supports claims of human rights violations, for instance. Surely this is not deemed insignificant by the United States Government. Surely it is 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.

• We must tread carefully here. There is truth and falsity in the implications of this claim. While it is true that national security concerns are rising, would it be correct to assume that Wikileaks is morally responsible for this? Would it not, for instance, be more cogent to argue that hostility toward America is a result of the fact that crimes and human rights violations were committed by its government? I leave this to the reader to ponder and refer you to the arguments for and against this position: Wikileaks in Moral Court.

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