[Congressional Record: December 2, 2010 (Senate)]
[Page S8399-S8400]


       By Mr. ENSIGN (for himself, Mr. Lieberman, and Mr. Brown of 
  S. 4004. A bill to amend section 798 of title 18, United States Code, 
to provide penalties for disclosure of classified information related 
to certain intelligence activities and for other purposes; to the 
Committee on the Judiciary.
  Mr. ENSIGN. Mr. President, I rise today to address a new and very 
serious threat to our national security.
  In July of this year, the organization known as WikiLeaks, led by an 
Australian citizen named Julian Assange, published 90,000 classified 
intelligence documents related to our efforts in the ongoing war 
against the Taliban insurgents and al-Qaida in Afghanistan.
  In October, WikiLeaks dumped 400,000 classified documents that 
revolved around the efforts of our Nation and our coalition partners to 
bring democracy, peace, and stability to the people of Iraq.
  Now, just a few days ago, WikiLeaks has dumped another 250,000 
documents that reveal private, often personal, communications between 
diplomats and heads of state--communication that is necessary for the 
critical discourse that occurs between governments on the many relevant 
and challenging international issues of our day.
  In light of the damage that has already been done and the continuing 
threat posed by WikiLeaks, I am here to introduce a bill that will help 
defend our national interests, protect our troops, and provide 
assurance to our friends and allies that what they say to us in private 
will stay with us, and that there will be consequences for the reckless 
actions taken by WikiLeaks, or others, who may attempt to do what they 
have done--consequences that are consistent with our values and with 
our first amendment.
  Let me spend a few moments examining the nature of this threat and 
some of the serious implications.
  After WikiLeaks dumped 400,000 classified documents concerning our 
efforts to promote democracy in Iraq, Pentagon spokesman Geoffrey 
Morrell stated the Department of Defense had to scramble to notify 300 
Iraqis because we were immediately concerned about their safety. He 
went on to say that as many as 60,000 Iraqis could possibly be 
identified in these leaked documents.
  Let us consider the plight of those Iraqis just for a moment. These 
individuals came forward to us with information that they felt would 
help their government deal with the insurgency and terrorist presence 
that has been an impediment to peace and stability within their nation. 
Yet this despicable character, Julian Assange, has rewarded their 
bravery by naming them to their enemies. This puts their very lives and 
the lives of their families in jeopardy. This discourages other Iraqis 
from coming forward and standing up for freedom.
  This, in turn, jeopardizes the lives of our American troops and harms 
our efforts to provide stability in Iraq to the point where we can 
withdraw our troops.
  Unfortunately, if Iraqis become afraid to speak out against the 
terrorists in their midst for fear of being named by Julian Assange, 
succeeding becomes that much more difficult.
  Let's turn to Afghanistan. Back in July, I read in the Times of 
London a very interesting assessment about the implication of Mr. 
Assange's actions. Let me quote:

       Hundreds of Afghans' lives have been put at risk by the 
     leaking of 90,000 intelligence documents because the files 
     identify informants working with NATO forces.

  Let me quote again from the Times:

       In just two hours of searching the WikiLeaks archive, the 
     Times found the names of dozens of Afghans credited with 
     providing detailed intelligence to U.S. forces. Their 
     villages are given for identification and also, in many 
     cases, their fathers' names.

  To the credit of the Times, they cited examples to back up their 
claims. But as any responsible media organization should, they at 
least, in their report, took the steps of hiding the names of the 
villagers who came forward with information to assist their government 
and NATO.
  Madam President, just as WikiLeaks recklessly dumped the leaked 
intelligence on Afghanistan, a Taliban spokesperson gave an interview 
in which he said:

       We are studying the report. . . .We will investigate 
     through our own secret service whether the people mentioned 
     are really spies working for the U.S. If they are U.S. spies, 
     then we know how to punish them.

  I don't think I need to elaborate on how the Taliban punishes their 
  Now we have this latest dump of classified State Department cables 
and information. I applaud our former colleague, Secretary Clinton, for 
the excellent remarks she has made on this issue. She pointed out that 
the leaks have put people's lives in danger, threatened our national 
security, and undermined our efforts to work with other countries to 
solve shared problems.
  An essential dialog takes place between nations--a dialog that has 
existed since nations first began. With that dialog, diplomats need to 
be able to express their views candidly and, yes, privately. This is 
how a lot of problems are solved.
  Our Nation is working toward international solutions to some very 
complex problems. The Government of Yemen is fighting terrorists that 
reside within their own borders. The proliferation of nuclear weapons 
technology and the threat of long-range missiles in North Korea are 
problems that require multilateral international engagement.
  Secretary Clinton made another point I will focus on for a moment. 
Assange didn't just leak classified details about meetings between 
diplomats. Our diplomats overseas meet with local human rights workers, 
journalists, religious leaders, and others--people with unique insight 
into a wider range of issues.
  Unfortunately, we live in a dangerous world where revealing the 
identity of someone fighting for social issues, such as women's rights 
or children's rights or the identity of an advocate for religious 
freedom could have serious repercussions that include imprisonment, 
torture, or even death.
  I wonder if WikiLeaks understands if Afghan villagers or activists 
fighting for human rights under oppressive regimes are killed as a 
result of being named in these leaks, the blood of these good people is 
on their hands.
  Before I proceed with an examination of the bill that I have crafted 
to address this threat, let's be clear about some things. No one should 
do Julian Assange any credit by referring to him as a journalist or as 
part of the news media. He is a computer hacker and an anarchist.
  True to his hacker roots, he has devised a portal through which he 
hopes members of our government will anonymously and surreptitiously 
provide him unfettered access to our closest secrets.
  Make no mistake, these actions have harmed our friends and helped our 
enemies in a manner prejudicial to the safety and national interest of 
the United States.
  So with this threat in mind, a threat that the Founders could have 
never seen coming, we have crafted a bill that amends the Espionage 
Act, specifically Title 18, Section 798.
  Under current law, it is a criminal act for someone who knowingly and 
willfully communicates, furnishes, transmits, publishes, or otherwise 
makes available to any unauthorized person any classified information 
concerning the communication intelligence activities of our United 
States of America.
  My bill, which we are introducing today, extends this protection 
currently afforded to the communications intelligence to human 
intelligence, known as HUMINT. This bill protects human intelligence 
sources and methods. I want to be very clear. It is my opinion that we 
can go after Julian Assange under the current statute. But what our 
legislation does is updates this decades-old statute to address this 
evolving threat prospectively.
  I have no doubt that Assange is going to put out another document 
dump on

[[Page S8400]]

his Web site and another one after that. Once he does, this bill would 
give the administration increased flexibility to deal with him and 
potentially other copycat organizations that aspire to his likeness.
  There are a couple of concerns I want to address. First, one might 
wonder how this bill stands with our first amendment. While I hope we 
can all agree that Julian Assange is no journalist, some might wonder 
if the amended law that would result from this bill could be applied to 
the news media. It is pretty frustrating for the intelligence community 
when communications intelligence sources and methods are blown.
  When this happens, sources of vital intelligence dry up or become 
inaccessible, and potentially millions of defense dollars go down the 
drain. However, despite the serious consequences associated with losing 
a communications intelligence source or method, and the damage that 
does to our national security, no Presidential administration has ever 
prosecuted a member of the news media under the existing statute, which 
has been on the books since 1951.
  Let's face it, leaks do happen. As Secretary Gates stated just a few 
days ago, regrettably, our government leaks classified information like 
a sieve. This bill does not stop anybody from publishing leaks, but it 
does provide legal incentive to Julian Assange to do what Amnesty 
International has repeatedly asked him to do: be more responsible about 
how classified leaks are handled by not revealing the identity of these 
classified human intelligence sources.
  Let me be clear. This bill doesn't target journalists. Instead, it 
provides flexibility for the Attorney General with a targeted solution 
and increased flexibility to deal with WikiLeaks.
  Some might be wondering whether Julian Assange, who is a foreign 
citizen, can be prosecuted under the Espionage Act. In fact, the courts 
long ago established that he can be prosecuted under these statutes.
  I am not a lawyer, but if you study the United States v. Zehe from 
1986, it becomes immediately clear that Assange can be prosecuted under 
the Espionage Act.
  That said, my concern is that our existing laws may have some 
loopholes through which he can escape. In fact, just a few days ago in 
the Washington Post, I read where Attorney General Holder said:

       To the extent that there are gaps in our laws . . . we will 
     move to close those gaps.

  Well, I submit that the bill I am introducing today, with a couple of 
others, will do just that. It closes a gap in our laws and it moves to 
protect vital human intelligence sources and methods consistent with 
the manner in which current law communications intelligence is already 
  I thank Senators Lieberman and Brown of Massachusetts for joining me 
in this important legislation and for the input Senators Lieberman and 
Brown of Massachusetts have given me on this important legislation.
  I hope we can take up this bill, consider it, work with the 
administration, work with the House, and pass this important 
legislation so the next time, and we know there will be a next time, 
that Julian Assange and his associates leak classified intelligence 
that puts people's lives in danger, we can actually have another tool 
in the arsenal so our Department of Justice can go after these 
despicable people.

PDF Version

S 4004 IS


2d Session

S. 4004

To amend section 798 of title 18, United States Code, to provide penalties for disclosure of classified information related to certain intelligence activities of the United States and for other purposes.


December 2, 2010

Mr. ENSIGN (for himself, Mr. LIEBERMAN, and Mr. BROWN of Massachusetts) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


To amend section 798 of title 18, United States Code, to provide penalties for disclosure of classified information related to certain intelligence activities of the United States and for other purposes.