A House committee held its first hearing on the WikiLeaks controversy Thursday, but those on the panel focused mainly on the problem of government over-classification and how, if at all, Congress should revamp the Espionage Act rather than if WikiLeaks editor Julian Assange should face criminal prosecution.

A House committee held its first hearing on the WikiLeaks controversy Thursday, but those on the panel focused mainly on the problem of government over-classification and how, if at all, Congress should revamp the Espionage Act rather than if WikiLeaks editor Julian Assange should face criminal prosecution.

Geoffrey Stone, a professor at the University of Chicago Law School, kicked things off by saying that WikiLeaks-related legislation is clearly unconstitutional. The Shield Act would amend the Espionage Act and make it illegal to publish the names of military and intelligence informants, but Stone said that while it might be constitutional to apply that to government employees, applying it to private citizens would violate the First Amendment.

The First Amendment does not require the government to be transparent or reveal its own secrets, and the government also has the right to restrict the speech of its own employees, Stone said. But the First Amendment does protect private citizens who disseminate information after the government has failed to keep it under wraps, unless revealing that information poses a clear and present danger to the country, Stone said.

Given that the government has a tendency to "overstate the potential harm in times of national anxiety," the clear and present danger aspect protects Americans against the suppression of public speech, Stone said.

A major theme of Thursday's hearing was that the government has a tendency to over-classify information, which some argued can actually make us less safe.

Former presidential candidate and consumer advocate Ralph Nader argued that WikiLeaks has become a "vast distraction" from the real problems  the "abysmal lack of security safeguards" within the government and the lack of accountability among those who suppress data.

"The suppression of information has led to far more loss of life, jeopardization of American security, and all the other consequences now being attributed to WikiLeaks and Julian Assange," Nader continued, pointing to the lead up to the Iraq War.

Gabriel Schoenfeld, a senior fellow at the Hudson Institute, meanwhile, said that "we live in the most open society in the history of the world, [but we still] have too much secrecy." As a result, "the leaking of secret information to the press has become part of the normal, informal process by which the American people are kept informed."

That being said, Schoenfeld said that it appears as though WikiLeaks has exhibited a "reckless disregard" of the safety issues associated with its leaks. "It has been able to launch LMDs, or leaks of mass disclosures; leaks so massive in volume that it becomes very difficult to assess the overall harm."

The purpose of the WikiLeaks data dumps "is to cripple our government, [and] as a democracy, it has every right to protect itself against those who could it harm."

Kenneth L. Wainstein, a partner at the D.C. law firm of O'Melveny & Myers, has similar thoughts. He expressed concern that if WikiLeaks does not face charges, the site "will conclude that they're legally invulnerable, they'll redouble their efforts, and copycat operations will sprout up around the Internet."

Is Julian Assange a Journalist?

Wainstein suggested that WikiLeaks is "fundamentally different" from a media outlet because it simply collects and discloses information without the editorial oversight usually seen at a traditional publication.

Thomas S. Blanton, the director of the National Security Archive at George Washington University, took issue with that assessment, arguing that WikiLeaks has made efforts to collaborate with news outlets like the New York Times and Le Monde on redaction efforts and what information it should make public.

"A great deal of redaction is going on" within the WikiLeaks staff, Blanton said. "They are looking more and more like a media organization."

While that might be true for the most recent diplomatic cable dump, Schoenfeld said that system was not in place for previous leaks regarding the Iraq and Afghanistan wars. He pointed to statements from Defense Secretary Robert Gates this summer, in which Gates expressed concern that earlier dumps were putting in danger the lives of American soldiers and Afghan citizens who have cooperated with the U.S. military.

"The notion that WikiLeaks is responsible seems to me unsupportable," Schoenfeld said.

Abbe Lowell, a partner at McDermott, Will & Emery, argued that defining who is and is not a journalist is a slippery slope. It injects prosecutors into the editorial process, Lowell said, and cannot be legislated.

"In American history, the function of gathering information and disseminating [it] is classic journalism," Lowell said.

Lowell and Stephen Vladeck, a professor at American University's Washington College of Law, also examined the Espionage Act and what should be done to update it in the age of WikiLeaks.

The 1917 law includes very vague language and was written to deal with acts of espionage committed by spies, which differs from an information dump on a public Web site, Lowell said. The current law lumps spies and leakers and those who disseminate the information into one group and applies its provisions equally. Is someone who sells U.S. military secrets to the Russian government over several decades in the same league as Julian Assange? Under the current Espionage Act, there is no distinction.

"I very much doubt that the Congress that drafted the Espionage Act meant for it to cover each category, let alone cover it equally," Vladeck said.

The law also applies to anyone who knowingly disseminates classified information, be it the original leaker, a newspaper, or the 100th person to redistribute or even retain the information, Vladeck continued. He suggested that if the government takes any action on this issue, there should be a separate, lesser offense for leakers vs. spies  one that does not extend to the press. Those covered under federal whistleblower laws should also be exempt, he said.