by Matthew L. Schafer
On Thursday, the House Committee on the Judiciary met to discuss both Wikileaks and the Espionage Act of 1917. (See full video here.) Representative John Conyers [D-MI] opened the meeting, saying, “Prosecuting WikiLeaks would raise the most fundamental questions about free speech, about who is a journalist and what citizens can know about their government. The problem today is not too little secrecy but too much secrecy.”
When all was said and done, the witnesses seemed to agree, in part, that the government is overclassifying information, the Espionage Act of 1917 is likely unconstitutional, the SHIELD Act, proposed recently by Sen. Joe Lieberman [I-CT], rests on a shaky constitutional footing also, and it is important that the legislature not overreact to the WikiLeaks cables.
“The government always overreacts to leaks, and history shows we end up with more damage from the overreaction than from the original leak,” Tom Blanton of the National Security Archive said.
Blanton was also joined by six other witnesses: Ralph Nader, legal advocate and author; Stephen Vladeck, Professor of Law at American University; Gabriel Schoenfeld, Senior Fellow at the Hudson Institute; Geoffrey Stone, Professor of Law at University of Chicago; Kenneth Wainstein, Partner at O’Melveny & Myers LLP; and Abbe Lowell Partner at McDermott Will & Emery LLP.
While almost all witness agreed that there are several flaws within the Espionage Act, there was disagreement as to whether WikiLeaks is protected by the First Amendment. With all witnesses having testified, four argued that Wikileaks is protected by the Constitution, two argued that it should be prosecuted, and witness Stephen Vladeck abstained from making a determination on WikiLeaks.
“If WikiLeaks can be prosecuted for espionage for these leaks, there is no legal or logical reason why a similar prosecution could not lie against all of the mainstream news organizations that routinely receive and publish protected “national defense information,” Kenneth Wainstein said.
Wainstein’s comment echoed the sentiment from several witness regarding how one should define WikiLeaks. Indeed, is WikiLeaks a news organization? Are those people who work with WikiLeaks journalists? Moreover, should those organizations and people be punished for releasing information that should have never been classified in the first place.
“The government’s national security classification system is broken, overwhelmed with too much secrecy, which actually prevents the system from protecting the real secrets,” Blanton said.
Abbe Lowell agreed, saying, “When asked to assess the rate of overclassification, [some have] stated that probably about half of all classified information is overclassified. Some agencies even classify newspaper articles and other public domain materials.”
Nader, however, gave the most impassioned speech regarding both Wikileaks and overclassification. During his initial testimony, Nader, citing governmental abuses of classification, continued speaking until he was cut-off by members of the House Judiciary committee.
“Secrecy is the cancer—the destroyer—of democracy,” Nader said. “If you take all of the present [WikiLeaks] disclosures, the vast majority should never have been classified, the vast majority are reprehensible use of people employing tax payer dollars, the vast majority should have been disclosed… for the benefit of the American people to hold their government accountable.”
Lead photo: soundfromwayout/Flickr