Recent leaks of classified information prompted concerned members of the Congressional House Judiciary Committee to hold a hearing today to address consequences for those involved in releasing and publishing national secrets.
The Subcommittee on Crime, Terrorism, and Homeland Security, among other things, listened to testimony about the effectiveness of the Espionage Act of 1917. Recently published investigative news articles in notable newspapers including The New York Times and The Washington Post on cyber warfare, drone strikes and other classified information have brought the issue of leaks to national attention.
At the packed hearing, several committee members presented the idea of targeting journalists who knowingly publish leaked information. Members raised questions about the intent of newspapers that print such material and whether journalists should be subpoenaed to testify about their sources.
"Why not send a subpoena to the reporter? Put them in front of a grand jury," said Rep. Trey Gowdy, R-S.C. "You either answer the questions or you're going to be held in contempt and go to jail, which is what I thought all reporters aspired to anyway … I thought that was the crown jewel in a reporter's resume: to actually go to jail protecting a source. Give them what they want."
Gowdy noted that there is no federal shield law to protect journalists and that First Amendment rights are not absolute. “The notion that the First Amendment has no limitations is balderdash — legally and otherwise,” he said.
However, no journalist has been prosecuted for merely receiving classified information without authorization. Moreover, courts have found that recipients have a First Amendment defense to the charge in some contexts.
Attorney Kenneth L. Wainstein, who testified in favor of reforming the Espionage Act, argued that reporters serve a purpose and will become “less energetic” in their duties if faced with a greater possibility of being subpoenaed. He also said that a prosecutor can satisfy his or her burden of proof without calling a journalist to testify.
Two former CIA employees, Jeffrey Sterling and John C. Kiriakou, are currently being tried in federal court for violating the Espionage Act. While the federal government announced it will not subpoena journalists as witnesses in the prosecution of Kiriakou, the U.S. Department of Justice is asking a federal appellate court to require New York Times reporter James Risen to testify in Sterling's prosecution.
As it is written now, the Espionage Act of 1917 makes it a crime for a government official to hurt the United States or benefit a foreign country by “willfully” communicating, delivering, or transmitting national defense information to “any person not entitled to receive it.”
Rep. Jim Sensenbrenner, R-Wis., said the Act “is outdated” and members of Congress “have to update it.”
“Espionage today is a lot different from espionage during the first world war,” he said.
Witnesses argued that the problem lies in the vagueness of the Act. Nathan Sales, a law professor at George Mason University, testified that changes to the law must be made to “resolve interpretive mysteries.”
“Key terms in the Espionage Act are notoriously vague, and Congress should act to provide greater clarity, either by tweaking the existing statutory language or by enacting an entirely new law that is specifically crafted to deal with the problem of leaks,” he said.
Rep. John Conyers, D-Mich., said any changes made must be done cautiously. “We must react to leaks in ways that do not undermine the openness and transparency of government,” he said. Conyers also noted that the overclassification of documents is a problem “worth attention.”
Stephen Vladeck, an American University Washington College of Law professor, said that leaks are a “symptom of overclassification” of documents by the government.
While members of the committee and the witnesses are concerned about the recent leaks, all agreed that it's an recurring problem.
“If you see government, you see leaks,” testified retired Army Col. Kenneth Allard, a former intelligence officer. “No one is exempt.”
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