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The U.S. House of Representatives Judiciary Committee held a hearing Thursday to address the Wikileaks controversy and discuss the future of the Espionage Act in light of demands that the government prosecute the site's founder, Julian Assange. The committee heard testimony from lawyers and advocates that stressed the importance of finding a balance between government transparency and maintaining national security secrets.
The overwhelming theme of the testimony was that the real problem facing Congress is not Wikileaks, but the government's massive overclassification of documents, which has led to a system where leaks are not only commonplace, but a part of the normal process of keeping the public informed, and legitimate state secrecy is as a consequence not respected.
More harm has come as a direct result of overclassification and lack of information than what is now being attributed to Wikileaks, Ralph Nader said in his opening testimony. Nader, like other witnesses who testified, warned the committee about rushing to pass new legislation. "Stampeded legislation always comes back to haunt its authors."
Abbe Lowell, a partner at McDermott Will & Emery, said Wikileaks showed that there are some minor communications that are being classified in the same category as legitimate secrets, which is a huge problem. Lowell, who had recently represented two Washington lobbyists who were unsuccessfully prosecuted on espionage charges, added that there needs to be a law for real acts of espionage and a separate law for handling leaks of legitimately classified documents. However, passing legislation in a hasty response to the current political landscape could lead to "decades of unintended consequences," he said.
Both those testifying and members of the committee stressed the importance of protecting the First Amendment and cautioned against the potential repercussions of placing the news media at risk of prosecution. Attorney Kenneth Wainstein testified that the issue of the impact on free press is one of "fundamental importance." Wainstein had served as former President George W. Bush's homeland security adviser, and was the first chief of the Justice Department’s National Security Division from 2006 to March 2008.
Rep. William Delahunt, D-Mass., insisted that this is an opportunity for Congress to take a look at how documents are classified and fix the problems of overclassification and misclassification. Delahunt repeatedly asked, somewhat rhetorically, for an explanation of who gets to decide what is classified and what is the standard for determining secrets. Answering that question is of utmost importance because the issue of overclassification "puts American democracy at risk," he said.
Committee Chairman John Conyers, D-Mich., said in his opening statement that while secrecy is sometimes necessary in government, the issue at present is not too little secrecy, but too much. Wikileaks is the result of rampant overclassification where, in order to get the information they need, too many people are given clearance to too much information and real secrets are then made available to those that cannot identify their true value and those secrets get compromised, he said. Conyers stated that "the answer to bad speech is not censorship, it's more speech."
In contrast, Rep. Louie Gohmert, R-Texas, voiced a concern echoed by some of those testifying: Does Wikileaks' position and intentions cross a line where it cannot be considered a member of the media, but an entity intent on hurting the U.S.? Gohmert said Wikileaks has shown a pattern of disregard for the safety of the country and no amount of misclassified documents justifies the site's actions.
Gabriel Schoenfeld of the Hudson Institute said that overclassification is a major problem that must be addressed through steps to declassify incorrectly labeled documents and fix instances of misclassification. However, he also testified that there is a need for real punishment for those that leak documents and for media outlets that print vital secrets that put the country in danger.
Wainstein suggested that creating better whistle-blower protections would lead to less leaks because government employees would have an outlet other than the media to take their information.
Most of the witnesses seemed to agree that there could be instances where a media entity could be prosecuted under the Espionage Act, but careful steps need to be taken to ensure the law is not applied too broadly. Stephen Vladeck, a law professor at American University, said that the Espionage Act does not distinguish between the leaker, the recipient of the leaked documents or even the 100th person to reprint the leaked information. As it stands, that is a violation of the First Amendment if it were applied to the media and an amended law needs to have protections for free speech, he said.
At the hearing's conclusion, Conyers called it "one of the most important hearings this committee has ever undertaken" and expressed the need for further hearings in the new year.
Panel testimony is available on the Judiciary Committee's website.