Opening Statement by Chairman John Conyers, Jr.

Welcome, everyone, to today’s hearing on the Legal and Constitutional Issues Raised by WikiLeaks. 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.”1

That was Justice William Brennan, a man who understood the founding principles of our nation.

Today, the Committee will consider the Wikileaks matter. The case is complicated, and involves important
questions of national security.

And no doubt important subjects of international relations and war and peace will be invoked. But fundamentally,
Justice Brennan’s observation tells us almost everything we need to know.

As an initial matter, 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.

That is why it was so encouraging to hear Jack Goldsmith, former Office of Legal Counsel head under President
George W. Bush caution us all last week. Mr. Goldsmith wrote:

“I find myself agreeing with those who think Assange is being unduly vilified. I certainly do not support or like his
disclosure of secrets that harm U.S. national security or foreign policy interests. But as all the hand-wringing over
the 1917 Espionage Act shows, it is not obvious what law he has violated.”2

America was founded on the belief that speech is sacrosanct, and that the answer to bad speech is not censorship
or prosecution– but more speech.

And so whatever you think about this controversy, it is clear that prosecuting Wikileaks would raise the most
fundamental questions about freedom of speech, about who is a journalist, and about what the public can know
about the actions of its own government.

Indeed, while everyone agrees that sometimes secrecy is necessary, the real problem today istoo much secrecy,
not too little. In the Pentagon Papers case, Justice Potter Stewart put it “When everything is classified, nothing is
classified.” Rampant overclassification in the US system means that thousands of soliders, analysts, and
intelligence officers need access to huge volumes of purportedly-classified material – and that necessary access in
turn makes it impossible to effectively protect truly vital secrets.

One of our panelists today, Mr. Blanton, put it perfectly in a recent radio appearance. He explained: “Our problem
with our security system and why a Bradley Manning can get his hands on all these cables is we got low fences
around a vast prairie because the government classifies just about everything. When what we need are really high
fences around a small graveyard of what's really sensitive.”3

Furthermore, we are far too quick to accept government claims about risks to national security, and far too quick to
forget the enormous value of some national security leaks.

As to the harm caused, by these releases, all must agree that Defense Secretary Bob Gates is a pretty reliable
source. His assessment – “Now, I’ve heard the impact of these releases on our foreign policy described as a
meltdown, as a game-changer, and so on. I think – I think those descriptions are fairly significantly overwrought.”
That’s his word: “overwrought.”

Mr. Gates continued: “Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I
think fairly modest.”

So the harm here – according to our Republican Defense Secretary – is “fairly modest”.

And then on the other side of the ledger, there is no need to go all the way back to the Pentagon Papers to find
examples of national security leaks that were critical to stopping government abuses and preserving a healthy
democracy. They happen all the time:
In 2005, the New York Times published critical information about widespread domestic surveillance. Ultimately we
learned of a governmental crisis that included threats of mass resignations at the Justice Department and
outrageous efforts to coerce a sick Attorney General into approving illegal spying over the objections of his Deputy
and legal counsel’s office.

To put it another way, if not for this leak, we would never have learned what a civil libertarian John Ashcroft is!

In 2004, the leak of secret Office of Legal Counsel interrogation memos led to broader revelations of the CIA’s
brutal enhanced interrogation program and“black sites.”

These memos had not been previously revealed to the Judiciary Committee or to many in the Congress. Some
may feel this harmed national security, but to many Americans the harm was a secret program of waterboarding
and other abuses, that might never have been ended but for the leak.

To close, 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.

###

1
491 US 397 (1989) (holding that the defendant’s conviction for flag burning violated the First
Amendment).
2
Goldsmith, Seven Thoughts About Wikileaks, Lawfare, December 10, 2010.
3
Is Wikileaks Release Brave or Unethical, NPR, November 30, 2010.