By Stephen I. Vladeck, a professor at American University Washington College of Law. Vladeck testified at yesterday's House Judiciary Committee Hearing (pictured) on the legal and constitutional issues raised by WikiLeaks. Video of the full hearing is available here.
One of the most refreshing things about yesterday's House Judiciary Committee hearing on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks," at which I was one of the seven witnesses, was the focus of the conversation. Rather than the WikiLeaks bashfest I initially feared that the hearing might turn into, an overwhelming majority of the conversation (and of the Members' questions) focused on prospective reforms to federal espionage, whistleblower, and classification laws, and not just for the "next" WikiLeaks situation. Instead, folks seemed to take seriously the myriad ways in which the vagueness and ambiguity of the current Espionage Act ultimately redounds to the benefit of no one (a point that Abbe Lowell, Ken Wainstein, and I each elaborated upon in our testimony).
If one theme came through in particular, it was the need for federal law to formally distinguish between three distinct classes of cases: (1) traditional espionage, where a spy steals national security secrets in order to benefit a foreign power; (2) unauthorized leaking by government employees; and (3) the retention and retransmission of classified information by private citizens with no intent to harm national security or benefit a foreign power. With regard to the first category, I think most were in agreement that, although the key is a strong and precise specific intent requirement, such a requirement would go a long way toward both obviating any First Amendment concerns and limiting the statute to that conduct that really is classical espionage, with appropriately harsh corresponding penalties.