A federal government in the clutches of "Wikimania" has harmed itself by restricting its personnel from reading leaked State Department cables made available by Wikileaks, testified Thomas Blanton, head of the National Security Archive at George Washington University, before a House panel.

The Air Force, which has reportedly blocked access to websites that published some cables in full--including the New York Times--"is essentially restricting its own open source information gathering," Blanton said. He and other panel members testified Dec. 17 before the House Judiciary Committee.

"It's self-defeating, it's foolish," Blanton said. The federal government has a history of overreacting to leaks, and is doing so now, he added, despite the Defense Department having already plugged one of the main secrecy holes exposed by Wikileaks's apparent receipt of 251,287 embassy cables from Army Pfc. Bradley Manning. Manning was reportedly able to download classified documents from a classified to a unclassified system by himself; Pentagon policy now requires two people to authorize such downloads.

Geoffrey Stone, a University of Chicago law professor, testified that proposed  legislation amending the Espionage Act, known as the SHIELD Act, is unconstitutional. The act would make it illegal to publish information "concerning the human intelligence activities of the United States or any foreign government."

"The act violates the First Amendment unless, at the very least, it is expressly limited to situations in which the dissemination of the specific information at issue poses a clear and imminent danger of grave harm to the nation," Stone said.  The "clear and present danger" standard of restricting free speech has been in effect since Justice Oliver Wendell Holmes formed it in his 1919 opinion in Shenck v. United States.

Panel members collectively emphasized the importance of reforming a national security classification system that, by common consent, over-classifies far too many documents.

"There is a great deal of myth and over classification within our national security bureaucracy," said Gabriel Schoenfeld, a senior fellow at the Hudson Institute and author of "Necessary Secrets: National Security, the Media and the Rule of Law."

As a result, leaking secret information to the press "has become part of the normal, informal process by which the American people are kept informed," he added.

A successful prosecution of Wikileaks might turn on Wikileaks's status and role in facilitating the leaks, some panel members said.

Wikileaks is not a mainstream media organization that warrants protection under press freedoms law, said Kenneth Wainstein, partner at law firm O'Melveny and Myers and a former U.S. assistant attorney general. "Wikileaks focuses first and foremost on simply obtaining and disclosing official secrets," he said. "By clearly showing how Wikileaks is fundamentally different, the government should be able to demonstrate to any prosecution here is the exception, and is not the sign of a more aggressive prosecution effort against the press," he added.

However, Abbe Lowell, a McDermott Will & Emery partner and former chief minority counsel during impeachment proceedings against President Clinton, characterized Weinstein's argument as a slippery slope since it "puts in the editorial room individual prosecutors who will make the decision as to who is a journalist and who isn't, and individual courts all over the place as to what deserves First Amendment protection and what does not."

A prosecution of Wikileaks as a conspirator to the original crime of leaking the documents, rather than for republishing them, might not be as constitutionally problematic, said Blanton even though it "would certainly be as unprecedented."

For more:
- watch the hearing (embedded video)
- go to the House Judiciary Committee hearing webpage for all the prepared statements
- go to the THOMAS page for the SHIELD Act, as introduced in the Senate (S.4004) and the House (H.R. 6056)
- see statements about the SHIELD Act from Senate sponsors Sen. John Ensign (R-Nev.) and Sen. Joe Lieberman (I-Conn.)

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