House Judiciary Committee Chairman John Conyers chairs a hearing on legal and constitutional issues raised by WikiLeaks.

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For over three hours on December 16th, the House Judiciary Committee held a hearing on legal and constitutional issues raised by WikiLeaks. The hearing focused on the Espionage Act and whether the government could prosecute Julian Assange and others affiliated with the organization or not. The hearing also focused on the limits of the law and how the U.S. could adjust the classification process to guard itself from future "attacks" from WikiLeaks.

The seven-person panel included: Abbe D. Lowell, a partner with McDermott Will & Emery LLP in Washington, D.C.; Kenneth L. Wainstein, a partner with O'Melveny & Myers LLP in Washington, D.C.; Geoffrey R. Stone, a professor and Former Dean of the University of Chicago Law School; Gabriel Schoenfeld, Ph.D., a Senior Fellow at the Hudson Institute, Thomas S. Blanton, Director of the National Security Archive at George Washington University, Stephen I. Vladeck, a Professor of Law at American University Washington College Law; and Ralph Nader, a legal advocate and author.

House Judiciary Committee Chairman John Conyers: Calls for "Criminal Prosecutions or Other Extreme Measures Make Me Uncomfortable"

John Conyers chaired the hearing, which was likely his last hearing as chairman of the Judiciary Committee. In his opening statement, he uttered words that few Democrats have been able to muster the courage to say:

"In the 1989 case of Texas v. Johnson, the Supreme Court set forth one of the fundamental principles of our democracy: '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.' That was Justice William Brennan, a man who understood the founding principles of our nation..."

"...There is no doubt that WikiLeaks is very unpopular right now. Many feel that the WikiLeaks publication was offensive. But being unpopular is not a crime, and publishing offensive information is not either. And the repeated calls from politicians, journalists, and other so-called experts crying out for criminal prosecutions or other extreme measures make me very uncomfortable.

Indeed, when everyone in this town is joined together calling for someone's head, that is it a pretty strong sign we need to slow down and take a closer look..."

"...the desire to respond to a controversy like this with new legislation is very understandable. And as many panelists will testify, the Committee should take a close look at these issues and consider whether changes in law are needed.

But let us not be hasty, and let us not legislate in a climate of fear or prejudice. For, in such an atmosphere, it is our constitutional freedoms and our cherished civil rights that are the first to be sacrificed in the false service of our national security."

Nader Warns Obama's and Bush's Military and Foreign Policies Have Put Us at Greater Risk Than WikiLeaks

Much of the hearing raised alarms or was cautionary about taking drastic measures.

"I'm very disturbed by the reaction of Attorney General Holder. I think he's reacting to political pressure and he's starting to fix the law to meet the enforcement policy. And, that's very dangerous," Nader testified. "He said the other day, 'The national security of the United States has been put at risk, the lives of the people who work for the American people have been put at risk, and the people themselves have been put at risk by these actions that I believe are arrogant, misguided, and ultimately not helpful in any way,' referring to the WikiLeaks disclosures via the New York Times and The Guardian and other newspapers. Those very words could apply to the Obama Administration and the Bush Administration's military and foreign policy. They have put us at greater risk."

Disseminating Information is "Classic Journalism"

Oddly, Lowell, a man who served as Chief Investigative Counsel to the Minority in the impeachment proceedings of President Clinton and who represented Sam Waksal of ImClone, Gary Condit during the Chandra Levy investigation and currently represents employees at American Israel Public Affairs Committee (AIPAC), who are being investigated for allegedly disclosing classified information, gave a pretty good argument for caution when going after WikiLeaks. Lowell contended, "In American history, the function of gathering information from the government by whatever source and disseminating it to the public is classic journalism."

"I understand that we're grappling to try and figure out where the First Amendment applies and who is a journalist and who isn't. And, I know many have said WikiLeaks and Assange are not because they, to use the phrase, "dump data" or they don't perform the function of being selective. I think that's a dangerous slope to be standing on because it puts in the editorial room individual prosecutors, who will make the decision as to who is a journalist and who isn't and to individual courts all over the place as to what deserves First Amendment protection and what does not. And it doesn't distinguish well between what WikiLeaks has done and when a more traditional media outlet posts a document in total on its website."

 

Far More Damaging Than the Pentagon Papers

Of those present, Schoenfeld was the most vindictive toward WikiLeaks (which is not surprising since the Hudson Institute is a right wing think tank). Schoenfeld and Wainstein, a Homeland Security advisor under Bush, were the only two who seemed to be prepared to make a case for prosecuting members of the press. Schoenfeld provided a historical fun fact about the Chicago Tribune during World War II that became a central focus of the hearing:

"In 1942, in the immediate aftermath of the Battle of Midway, the Chicago Tribune published a story strongly suggesting that the decisive American naval victory at Midway owed to the fact that the United States had been successfully reading Japanese codes. Shocked officials in the War Department in Washington sought to throw the book at Col. McCormick and a grand jury was empanelled to hear evidence and bring charges. When it turned out that the Japanese had not changed their codes in reaction to the news story, the War Department asked the Justice Department to drop the proceedings lest further attention be called to a story the Japanese had seemingly ignored.

But there can be no blinking the gravity of that breach. If the United States, thanks to the Chicago Tribune, had lost its window into Japanese military communications, the war in the Pacific would still have ended in certain Japanese defeat. That outcome was all but assured by the atomic bomb. But three years were to elapse before the atomic bomb was ready for use. In the interim, without the priceless advantage of knowing Tokyo's every next move in advance, thousands--tens of thousands--of American soldiers and sailors would have needlessly died."

Schoenfeld contended WikiLeaks' release of documents were far more similar to this instance with the Chicago Tribune than the Pentagon Papers. He added that because the secrets WikiLeaks is revealing involve "ongoing diplomatic, military and intelligence programs" and are not "historical" they are much more damaging to the U.S. than the Pentagon Papers.

Blanton tried to correct Mr. Schoenfeld, who was delivering talking points the media had been propagating about WikiLeaks being irresponsible. He explained that a "great deal of redaction is going on here, on a daily basis" and "extensive descriptions" of the process have appeared in "editors' notes by all the media outlets who are publishing stories on this matter." Media outlets have "testified to the fact that WikiLeaks is following their lead after their reporters engage in exactly that discussion with the government about what the risk is, which is exactly the discussion the Chicago Tribune did not have in it's case and was its own journalistic failure."

"They're Doing Some Very Smart Things to Eliminate Distinctions Government is Trying to Draw"

Wainstein acknowledged that there were prime First Amendment concerns that could be raised by prosecuting WikiLeaks. He cited the concern as "reason why the Justice Department has internal procedures for all media-related cases that impose strict limitations on the investigation and prosecution of press activities -- limitations that go well beyond what the law requires; and it is the reason why -- despite the media's publication of leaked classified information on an almost daily basis -- the government has never chosen to prosecute a media organization for espionage."

But, Wainstein proceeded to detail how a efforts to prosecute could be waged by making a distinction that media is "generally dedicated to the dissemination of newsworthy information to educate the public" while "WikiLeaks focuses first and foremost on obtaining and disclosing official secrets." The note suggested that press is allowed to disclose secrets to educate the public, but, if that was all they were dedicated to doing, they might not be worthy of a media organization designation. (Sound screwy? Yeah.) 

He outlined, "The media gathers news about sensitive areas of government operations with probing investigative reporting; WikiLeaks uses its elaborate system of high-security, encrypted drop boxes on the Internet that are designed specifically to facilitate disclosures of sensitive government information and to circumvent the laws prohibiting such disclosures." Wainstein, here, ignored the protection WikiLeaks offers to whistleblowers who might fear punitive measures if a media outlet were to reveal their identity to authorities.

Finally, he said, "The media typically publishes only those pieces of sensitive information that relate to a particular story of perceived public importance; WikiLeaks is in the business of releasing huge troves of leaked materials with little to no regard for current relevance or resulting damage." 

As previously mentioned, Blanton debunked the fact that WikiLeaks has no regard for the impact the release of information could have on individuals. He also said in relation to Wainstein's testimony that WikiLeaks was doing work to make it harder for government to say they are not a "media outlet" or "journalistic" operation:

"They're doing some very smart things to eliminate the distinctions you are trying to draw. They are asking the government for feedback on the documents. They are taking care to follow the lead of the media. They are actually doing the publication in concert with media organizations that have the capacity they do not have to do reporting. And, in fact, they are looking more and more like a media organization.

The New York Times' Charlie Savage reported this week the Justice Department would like to designate Assange as an accomplice to what Private First Class Bradley Manning did when he downloaded the information and sent it to WikiLeaks. They think that might avoid some of the hurdles they would be faced with if they charged Assange for something that could be applied to members of the press in the future. 

Glenn Greenwald wrote about U.S. plans to circumvent freedom of the press restrictions that might inhibit any prosecution of Assange. (He also reported, this week, that Manning is experiencing inhumane conditions that amount to torture in the military prison he is being held in until his trial.)

Authors Bio:
Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure." He was an editor for OpEdNews.com