The WikiLeaks disclosures this fall that have precipitated so much controversy and agita among national security officials and politicians should not be used as a springboard for new, more restrictive laws, lawmakers, attorneys and policy analysts said in a House hearing Thursday.
In fact, the reaction from Congress and the Obama administration should be just the opposite, according to witnesses who testified during a hearing held by the House Judiciary Committee on the legal and national-security ramifications of the WikiLeaks incident.
“When everyone is calling for someone’s head, it’s a pretty good sign that we might want to slow down,” said John Conyers (D-Mich.), chairman of the Judiciary Committee.
Several prominent attorneys, policy analysts and even committee members said that the disclosures by WikiLeaks, while certainly embarrassing and concerning, can be linked directly to the over-classification of government information in the last decade.
The reflexive secrecy that emerged after 9/11 has helped contribute to an atmosphere in which far too much government data is classified or otherwise kept secret without any real justification, the witnesses said. Perhaps the strongest comments came from consumer advocate Ralph Nader and Rep. William Delahunt, both of whom referred to the secrecy as damaging to the country’s ideals.
“There’s an overwhelming overclassification of documents. Who does the classification? Is it the Secretary of State or the attorney general? I found out that it’s some low level bureaucrat and the process itself is arcane and there is no accountability in the classification processes in the exec branch and that’s very dangerous,” said committee member Delahunt (D-Mass.), who is leaving at the end of his current term. “Secrecy is the trademark of totalitarianism and transparency and openness is what democracy is all about. WikiLeaks provides an opportunity for this committee. There is far too much secrecy and classification in the executive branch and I think it puts American democracy at risk.”
“Secrecy is the cancer, the destroyer of democracy,” said Nader.
Several of the invited witnesses, nearly all of whom were lawyers, echoed Delahunt’s sentiments, saying that much of what was contained in the latest WikiLeaks disclosures should never have been classified in the first place.
“Everyone agrees that there’s a need for a strong espionage law to prohibit mishandling of properly classified information,” said Abbe Lowell, a prominent Washington lawyer. “The problem is that the current law lumps all of the information together. When Congress starts deciding how to criminalize the de-classification of information, it should take into account the overclassification.”
Both the committee members and the witnesses expressed concern that the current backlash against WikiLeaks and the group’s supporters would result in the passage of laws that would erode the protections afforded to journalists and other citizens by the First Amendment. There is a measure under consideration in the Senate right now called the SHIELD Act that would provide for penalties for illegally disclosing classified information. Geoffrey Stone, a professor at the University of Chicago Law School, said in his testimony that the proposed bill would be unconstitutional in some respects.
“The SHIELD Act is plainly unconstitutional as applied to other individuals or organizations that might publish [leaked documents] after they’ve been leaked. The First Amendment doesn’t compel government transparency and it cedes considerable authority to restrict the speech of its own employs. But the government can’t suppress the speech of others when it failed to keep its own secrets. Only an emergency can then override that. Suppression of free speech must be the government’s last, rather than its first option. The bottom line, then, is this:the proposed SHIELD Act is unconstitutional.”
Thomas Blanton, director of the National Security Archive at George Washington University, said that history has shown that lawmakers often react to events such as the WikiLeaks publications by pushing through new laws that end up coming back to haunt them and the American public.
“The government always reacts to leaks. Always,” Blanton said. “The government typically goes right to classifying more information. I’m worried most aboutthe backlash. There is no epidemic of leaks. They all came from one place, from what we know. Yeah, it’s awkward. Yeah, it’s embarrassing. But it’s not a meltdown.”
