Transcript: Sen. Jeff Sessions’s remarks on the Free Flow of Information Act – Sept. 12, 2013

Partial transcript of remarks by Sen. Jeff Sessions (R-Alabama) on the Free Flow of Information Act. The Senate Judiciary Committee hearing was held on Sept. 12, 2013:

Sen. Jeff Sessions (R-Alabama):
…Let me just say that the attempt that Sen. Feinstein has made here evidences and establishes a difficult of the issue we’re dealing with.

Freedom of the press allows the press to publish freely, and it guarantees that. It does not guarantee the press the ability to aid and abet, to conspire with government officials to leak sensitive information that’s classified. It does not. Never has. And we’ve never had a law in the United States that would do this.

This law is a rather significant move and states don’t deal with the national security questions like we do.

And the Department of Justice has tough rules to protect the press…

I’m not in a big rush to pass a bad piece of legislation…

Let’s just talk about it fundamentally on this question. I believe press would still be defined as Al Jazeera…

Sen. Chuck Schumer (D-N.Y.): No

Sen. Jeff Sessions (R-Alabama): Are foreign press eliminated from this definition?

Sen. Chuck Schumer (D-N.Y.): The bill excludes agents of a foreign power.

Sen. Jeff Sessions (R-Alabama): Agents of a foreign power? How do you – so how are we going to prove that? The old Soviets didn’t call their press agents of a foreign power. They said they were independent but we know they were direct organs of the state and that still happens in this world today.

Sen. Chuck Schumer (D-N.Y.): On this, there is a judge who’s overseeing this. And if the person is not a journalist and has other purposes, they will not be included.

Sen. Jeff Sessions (R-Alabama): No, Sen. Schumer. That’s not correct. If someone comes here who is a spy under the cover of an independent journalist, there’s no way a judge is going to be able to establish in many cases. Surely you know that.

Sen. Chuck Schumer (D-N.Y.): As far as [overlapping audio] – you’re wrong. Well, if someone is covertly a spy and masquerading as a journalist, but that’s an example – you could have a spy masquerading as a soldier. You could have a spy masquerading as a business person. You could have a spy masquerading as a CIA agent…

Sen. Jeff Sessions (R-Alabama): Well, we have lots of spies masquerading as press…

Sen. Chuck Schumer (D-N.Y.): …know he is a spy and not being a legitimate journalist, he would not be included.

Sen. Jeff Sessions (R-Alabama): And you have to have proof that this is not a legitimate journalist, and it’s difficult to prove and you know it, Sen. Schumer, unless you haven’t been in court like I have.

So I know the difficulties here. It’s a very broad definition. And there’s no way you can control this definition, and you haven’t controlled it sufficiently. Sen. Feinstein has raised concerns about that; Sen. Durbin has in the past.

A compromise has been reached. I don’t think it’s sufficient. That’s what my position is. And that’s what my analysis of. I still think it is in a situation that’s almost undefinable, and we have not given constitutionally the press any more power than any one else to ascertain and obtain classified information nor should we.

…This would be the first privilege I’m aware of that the virtually exclusive purpose of it is to protect people who violated the law…

…I would suggest to us that there is not a demand that we pass this legislation, and it’s a very difficult piece of legislation to craft as we’ve all seen. It’s over 20 pages. And most of the privileges for spousal and stuff that are in state law – one paragraph, two or three sentences. This is a very, very difficult bill to draft, and that’s why you’ve had so much work on it.

And it raises the question do we need to do this? Why haven’t we done since the founding of the republic?

…I spent 14 years plus as part of the Department of Justice, but I truly believe just from the perspective I gained in that office is that the effect of this bill is confuse governmental responsibilities.

The executive branch is the relevant branch to set classification standards. We’ve approved that. We can change their ability to do that through legislation if we desire. But that’s what is set up and historically spies were shot if they were to reveal information that were helpful to the enemy.

So the media goal – the media driving force behind their vision is to be the first to publish news. They have no responsibility institutionally to protect the national security of this country. That is not the media’s responsibility. Indeed, many news organizations that will be covered under this law represent ideologies, foreign interests directly contrary to the United States’ national security interests. Just plainly that is so. There are hostile powers and hostile organizations that have legitimate under this statute news organizations. So this legislation in effect says we’re going to create legal mechanisms to protect anyone who calls himself a newsperson, and the leaker basically is the one being protected from identification and prosecution for the plain violations of the duly enacted classifications laws of the United States of America. That is a confusing thing – a confusing thing.

So it’s schizophrenic, I would suggest. On the one hand, we say we should have security. We have secret briefings in the Senate. No one has said everything in those briefings should be announced to the entire world. Secrecy is a legitimate interest of any national government. So we say we believe in that but this legislation would encourage more leakers. It gives them sort of advantage to them in a significant way. It would make it harder to stop and prosecute those cases.

Some say the latest events that we’ve seen in the media prove the need for this legislation. But I would suggest not so. I think the latest events that we’ve seen where we’ve had worldwide damage to the national security of the United States of America in almost unprecedented levels, that that doesn’t call for us to protect leakers more. If anything, the problem this country has is we’ve been unable to maintain the legitimate national security secrecy…

…You have to establish that the leak would cause significant and articulable harm to national security and that’s not always possible.

And who knows what a judge’s responsibility is. Judges have repeatedly told us in their case opinions they don’t feel they are able, empowered, and responsible for making decisions about what is national security and what’s not.

And of course, we’ve always deferred to the Department of Defense and other agencies to determine what should be protected…

…Well, judges should not be expected to classify information. They’re not capable of deciding what should be kept classified and what should not is what I would say.

In many cases, the inability to identify sources of leaked information will guarantee the leaker will be able to violate the law with impunity and get off scott-free. That’s an absolute fact…Sometimes an information is a serious breach but a judge might find it fails to meet the significant and articulable harm that the statute sets forth.

So the current system is not broken in my view. The Department of Justice has very, very strong guidelines on these issues. They have very seldom issued subpoenas.

When I was a new U.S. Attorney, I improvidently issued a subpoena to a local…The brass called up and said, “Jeff, do you know about the guidelines?” I said, “Well, I think I do.” “Well, you need to go back and read ’em.” And I went back and read them and I was wrong. I didn’t have the – there were other ways I could have gotten the information. I shouldn’t have issued that subpoena. It’s very, very strong guidelines on the Department of Justice before they can issue subpoenas. But under certain circumstances, they need to be able to do that…

…I truly believe the restrictions are too tight and require the government to meet too high a burden. It requires that government establish the leak will cause “significant and articulable harm to national security.”

This would invite litigants and courts to effectively second guess the determinations made by intelligence and law enforcement officials concerning the damage to national security that would be caused by such a leak. It requires the courts re-evaluate and decide in place of the Secretary of Defense’s decision, for example. Such second guessing would involve the application of a novel standard that does not even track the standards we use in national security classifications.

Specially, to persuade a judge to compel disclosure under this bill, that is a reporter who revealed classified information, the government would have to show that the leak has caused or will cause significant and articulable harm to the national security.

…A leak of properly classified information by definition harms national security. All of the classifications are basically based on the fact that a leak requires harm to national security. We’d be empowering a judge to simply impose their uninformed standard, their uninformed conclusion on the government as a whole.

Particularly with respect to confidential information, the harm to national security – that’s the lower classification – that could be reasonably expected is arguably less than the government would be required to demonstrate under this bill…That confidential information would appear to be lower standard that it couldn’t be prosecuted as “significant and articulable” harm to the United States. This provision could thus expose large amounts of properly classified information through unauthorized disclosures while effectively blocking any investigation or prosecution of those who deliberately and systematically leak that information.

It would also require the government to reprise for the court and other litigants the decisions relating to how and why the leaking of information has harmed or will harm national security, which will almost certainly entail a revelation of even more sensitive and classified information. That’s the practical result. You’ve got to prove it in court somewhere.

…I can’t understand why we would want judges, who generally lack the training and expertise, to do this, to be making decisions on what is properly classified. Even if one were to believe that the current system of classifying information is broken, it is not the role of the judicial branch to determine what is properly classified. It’s just not. It’s not their role. They don’t have that responsibility and they’ve repeatedly made that statement in cases over many, many decades.

The power to determine whether or not something is classified belongs to the executive branch. The President issues an executive order with detailed rules. Individual experts at executive agencies with years of intelligence experience develop specific guidelines for what should be classified and at what level. I cannot fathom why we’d want to abdicate executive authority – eliminate that which could result in harm to our national security in the long run.

Additionally, as this bill is written, this exception would not include backward-looking investigations into classified leaks. This is a serious problem because if the government cannot prove that a leak would cause “a significant and articulable harm to national security in the future”, it cannot obtain this information.

Even worse, because the exception is worded prospectively, if a classified leak has already resulted in damage to national security, by the time the subpoena were issued, this exception would not apply. So if a leak had already contributed to an act of terrorism, the government cannot use this, it appears, to obtain the information because that atrocity happened in the past and the leaking of classified information is singled out for this treatment. For all other crimes under the national security exception, the government has permitted limited backward looking investigation ability to identify a perpetrator. But for classified leaks, the government cannot even do that.

So I don’t know why we want to make it easier for people to leak classified information. Congress enacted relevant criminal laws against the leaking of classified information precisely to prevent leaks from occurring. Congress passed the penalties.

Over the last few years, leaks have occurred. CIA Director John Brennan has characterized these leaks as devastating and unconscionable. The series of leaks involved details about extraordinarily sensitive information such as kill lists of terrorist suspects, U.S. ties to a computer virus, involve the Iranian nuclear program, and the infiltration of an Al Qaeda-linked operation by a double agent. So more recent events include massive leaks of terrorist surveillance programs.

Current and former intelligence officials have said that because of Snowden’s leaks of classified information, suspected terrorists have changed how they communicate.

I think most Americans agree that sources of classified information should not be protected – people who are leaking. Congress can make it easier for investigators and prosecutors to bring to justice those that imperil national security…

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One Comment on “Transcript: Sen. Jeff Sessions’s remarks on the Free Flow of Information Act – Sept. 12, 2013

  1. Pingback: Justice Department revises guidelines for obtaining information from journalists | What The Folly?!

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