The Work

December 16, 2010 4:02 PM

McDermott, O'Melveny Partners Testify Before WikiLeaks House Panel

Posted by Brian Baxter

A House Judiciary Committee hearing Thursday on WikiLeaks and the Espionage Act featured two witnesses from Am Law 100 firms: Abbe Lowell, head of the white-collar defense practice at McDermott Will & Emery, and Kenneth Wainsten, a former national security adviser now at O'Melveny & Myers.

Both lawyers were called to Capitol Hill to testify as part of a panel on the legal and constitutional issues raised by WikiLeaks's release of confidential U.S. State Department cables earlier this month, according to The Blog of Legal Times, a sibling publication. (Video of the proceedings can be viewed here, courtesy of C-SPAN.)

The panel considered whether the Espionage Act of 1917 can be used to prosecute individuals like WikiLeaks founder Julian Assange, who currently is out on bail and under quasi-house arrest at a Georgian mansion somewhere in England.

Wainstein, who joined O'Melveny in February 2009 after leaving the Bush administration, appeared sympathetic to the argument that individuals like Assange should be prosecuted for leaking state secrets. (Click here for a copy of Wainstein's prepared testimony before the Judiciary Committee.)

"In terms of intent, Assange's argument that he meant no harm falters when examined against the record of his actions," Wainstein says. "While he may well genuinely believe that public access to these materials is good for governance and the governed, he clearly knew that significant injury could result from their release. The documents dealt with some of the most critical matters of state; they contained sensitive information such as the specifics of troop movements and deployments; and lest there be any doubt, the State and Defense Departments put him on notice with letters detailing the damaging consequences that would ensue if he leaked the materials in his possession."

Wainstein also argued that a revision of the Espionage Act itself is badly needed. He noted that the statute's broad language could be used against a newspaper reporter dealing with a sensitive piece of information. The Act, he said, completely overlooks "some of our most critical espionage vulnerabilities" such as the disclosure of materials over the Internet.

"While there are numerous other aspects of the Espionage Act that warrant careful review, these are some of the central issues that go to the balance between protecting our official secrets and ensuring freedom of the press," Wainstein said in his prepared testimony.

Lowell, who currently represents a former State Department analyst charged under the Espionage Act for allegedly leaking information to the media, offered a somewhat different take. (Click here for a copy of Lowell's prepared testimony before the Judiciary Committee; Lowell also recently took part in a similar legal roundtable discussion put together by MSNBC on the subject.)

He argued that the nation "needs a strong law that makes criminal and treats as seriously as possible anyone who spies on our country." But, Lowell added, a distinction must be made between materials determined to be matters of national security and the "over-classification" of information.

Lowell, like Wainstein, believes the Espionage Act must be revised. He criticized the ambiguous nature of the statute's current provisions, which he likened to a legal "morass." He referenced his representation of two former AIPAC lobbyists charged under the Espionage Act and noted that prosecutors eventually dropped that case because they thought a trial might reveal more classified information than had already been disclosed.

WikiLeaks itself could also be seen as a media target, rather than one person or a group of individuals being prosecuted for misdeeds under the Espionage Act, according to Lowell. That could afford the organization, despite its disparate nature, some elevated level of press protection not generally granted to everyday citizens, he said.

"A meaningful debate about the Espionage Act and changes to the law are long overdue," Lowell said in prepared remarks. "However, a current scandal or crisis is not the time to act too quickly. There is often an urge to address the clamor of the crisis to show that Washington is listening and doing something and taking a problem seriously. This can lead to ill-conceived laws that have unintended consequences that infringe on rights and cause decades of needless litigation."

Other witnesses appearing before the Judiciary Committee included University of Chicago law professor Geoffrey Stone, American University Washington College of Law professor Stephen Vladeck, George Washington University National Security Archive director Thomas Blanton, Hudson Institute senior fellow Gabriel Schoenfeld, and Ralph Nader. (Click here, here, here, and here for testimony of the remaining panelists; Nader didn't submit prepared testimony.)

The Judiciary Committee's hearing concluded in the early afternoon on Thursday.

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hee. So much for the freedom of press. You know this is strictly a bunch of political hooey. How would this be different had our US citizen/US Soldier given the data to a foreign government? The US gonna charge a foreign government under this bogus Espionage Act? As if they would really care. Oh yes. Never mind. I forgot about the collusion between our government and others.

The icing is bringing in a bunch of lawyers to speak legalese which everyone knows only a lawyer understanding.

Why do they think that they have jurisdiction when the individual is not a US citizen but a foreign national. Is this the same kind of thinking when they fly drones over foreign air space and kill non US citizens. Why don't the idiot bullys try that over China or Russia and see what happens?

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