2010-12-21 WikiLeaks / Espionage Act Hearing: Wainstein

Testimony of Kenneth L. Wainstein (Editor's note)

Assumptions made (stated as fact) by Wainstein:

1. Wikileaks discloses "sensitive information" in a "mass and indiscriminate" manner.
2. The sensitive information leaked through Wikileaks is "not newsworthy".
3. In virtue of 1, Wikileaks poses a threat to National Security that is more serious than that posed by the disclosure of sensitive information by the mainstream media.
4. Wikileaks activities do not qualify as traditional journalistic reporting.
5. Charging Wikileaks as a journalistic organization with espionage under the existing laws would pose a thread to "the free press", as defined in terms of an organization that practices traditional journalism.
6. There's an urgent need to suppress leaks that pose a threat to national security.
7. The proposed Shield Act is unconstitutional.

The 2 questions on the table, in Wainstein's view, are:

1. Whether to prosecute Wikileaks;
2. Whether to revise the existing laws relating to the current Espionage Act.

Wainstein's answer to the second question is yes. The laws should be revised. Current laws must be clarified in a manner that more accurately reflects the particularities of new Internet-related methods of disseminating information in the 21st Century.

His answer to the first question is also affirmative. Wikileaks should be prosecuted. Most of his statement focuses on showing how the US can prosecute WikiLeaks without bringing about negative repercussions for the free press in America, and without violating The First Amendment. His proposed strategy is to show that WikiLeaks differs fundamentally and substantively from the traditional media.

WikiLeaks disclosures of sensitive information can be categorized as differing from the disclosure of sensitive information via the traditional press on the grounds that the traditional press only discloses sensitive information that relates directly to a story (in the process of investigative reporting). Wainstein insists that WikiLeaks disclosures of " official secrets", on the other hand, focus on obtaining and disclosing sensitive information in a mass and indiscriminate manner. He sees this as the key to a successful prosecution of WikiLeaks.

Notes

Witness Information:
Kenneth L. Wainstein
Partner, O'Melveny & Myers LLP
Washington, DC
Written Statement (pdf)
Video Transcript (Youtube)

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