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Posted on YouTube: December 08, 2010
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http://transcripts.cnn.com/TRANSCRIPTS/1012/07/ps.01.html">TRANSCRIPT:SPITZER: The man behind the leaking of classified documents remains in jail tonight, but not for dumping secret diplomatic cables. Julian Assange will be held in a London jail for a week. He surrendered to police after Sweden issued a warrant for his arrest over allegations of sex crimes. The detention of Assange buys the U.S. Justice Department a little time as it scrambles to find a crime to charge him on.
It was a mob scene outside of the London court. Several celebrities came forward on Assange's behalf today, and his attorney issued this blunt warning.
(BEGIN VIDEO CLIP)
MARK STEPHENS, JULIAN ASSANGE ATTORNEY: A number of people are prepared to stand up on behalf of Mr. Assange and prepare his innocence. In those circumstances, I think we will see another bail application and they were about the tip of an iceberg. This is going to go viral. Many people will come forward to stand assurances for Mr. Assange. Many believe Mr. Assange to be innocent, myself included, and many people believe that this prosecution is politically motivated.
(END VIDEO CLIP)
KATHLEEN PARKER, HOST: Meanwhile, WikiLeaks say it's operating as usual and that it plans to release even more documents on schedule. The company posted a massive encrypted file that Assange's lawyer called a thermonuclear device. He says it will be activated if WikiLeaks is shut down.
SPITZER: Joining us tonight to discuss WikiLeaks and Assange are Naomi Wolf, who is concerned about the dangers to democracy by manipulating the law and the detainment of Assange. And Clay Shirky is an expert on social networking and admittedly conflicted about how to handle Assange and WikiLeaks in this circumstance. And for the legal perspective, we've asked CNN's Jeff Toobin to join us.
Welcome to you all.
NAOMI WOLF, AUTHOR, "THE END OF AMERICA": Thank you.
SPITZER: All right, Jeff, let me ask you this question. Two discreet legal issues to be confronted. First his potential exposure in Sweden or I guess in London for the events in Sweden about sexual assaults that are alleged. Second, the events relating to the leaking and the publication of the diplomatic documents. How do you assess his legal exposure?
JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, I think he is in big trouble in both realms. The Swedish government has now filed formal charges against him and are seeking his extradition. Most of the time, extradition is successful. And it is likely, I think, that he will go back into Sweden sooner or later. Delay, of course, is always possible.
In terms of the WikiLeaks case, the case about disclosure of classified information, there have been no charges yet. But when you have the attorney general of the United States hold a press conference, the sole purpose of which is to say we are investigating this guy and his group for criminal activity, it's a safe bet the charges will be filed soon, and I think they will be.
PARKER: What's so hard about just charging him with receiving stolen government documents?
TOOBIN: Because you have to put the pieces together for a criminal case. Who actually just got these documents? How did they get on to WikiLeaks, on to the Web site? Who physically put them there? What was Assange's role in getting -- was it a thumb drive from point A to point B? All of that may be known to the U.S. government. It's certainly not known to the public now, and you can't bring a criminal case unless you can actually connect the evidentiary dots.
WOLF: I can't believe we're having this conversation in a way because Assange isn't the guy who got the classified information. Some unknown person did that. He's not Daniel Ellsberg. He's "The New York Times." And I'm shocked that we're sitting around saying there's, you know, there's a criminal discussion about a criminal investigation of someone who is a publisher. No different from us sitting here. No different from me putting things on my own Facebook page or Web site. No different from "the New York Times." And what does it come to in the United States that there's been this mission creed that the people who are actually publishing what was classified information are the ones being scrutinized when that's something --
PARKER: He's a delivery point.
WOLF: And they decided in the Ellsberg case that "The New York Times" was right to publish. That the benefit to all of us as citizens outweighed the national security alert that the government then declared. And they always declare a national security alert when they don't want the citizens to know something embarrassing to them.
PARKER: All right. Clay, you said you have -- you're very confused about, on the one hand, you're for total transparency but not absolute.
CLAY SHIRKY, SOCIAL NETWORKING EXPERT: No, on the contrary, I said I'm not for total transparency. If, for example, there was a leak of all the information from all the teenage girls on Facebook --
UNIDENTIFIED FEMALE: Right.
SHIRKY: But I think we would regard that with horror. So there is -- there is I think not a case to be made for total transparency and the way democracies deal with that is we say we have a system of checks and balances. There are some kinds of things that can be punished, other kinds of things that can't be published. I think we would have no trouble saying of "The New York Times" were they to publish such a hypothetical data file, you know, the -- something, private material from Facebook, that this would be problematic.
WOLF: What if it's in the public interest?
PARKER: But it may not be in the public interest.
SHIRKY: This is the question.
WOLF: But that's what the courts decide, not legislators.
SHIRKY: And this is what I come down to, which is whatever the -- whatever the long haul decision of a democracy is, if Assange is brought to trial and the trial goes forward or if, as Senator Lieberman wants to, do the laws are rewritten and the new laws take place, that at least will have been part of the Democratic process. The only truly catastrophic mistake I think we could make right now is to opt out of democracy because it's too slow.
WOLF: Thank you.
SHIRKY: And just run WikiLeaks off the net because we don't like it.
WOLF: Thank you.
SHIRKY: Both because in the short term it doesn't live up to Democratic ideals. And because in the long term, actually in the medium term, we hand the rhetorical advantage to every autocratic government in the world.
SPITZER: Can I ask a question? Because I want to parse this a little bit more finely. Don't we have to when you begin to do this, distinguish between the person who took or stole the information and somebody who merely publishes it?
WOLF: Absolutely.
SPITZER: And so let's look at those in two entirely different circumstances, Jeff, as well as a matter of law.
WOLF: It's not our opinion. It's not what we're sitting around thinking this is right or this is wrong, or I don't want my daughter's secrets from Facebook published by "The New York Times." It's a matters of law. There is such a thing as classified information. It is illegal to release it, if it's classified if you're the one who took it. So the person that they're right to investigate is whoever took it. I think that's what happened. And if, by the way, if they're investigating him, where is Cheney and where is, you know, Scooter Libby who also released classified information in outing Valerie Plame.
TOOBIN: Dick Cheney was the vice president of the United States who has authority to declassify anything he wants. But putting that aside, since when is Julian Assange in charge of deciding what should be public and what's in the public interest? We have a process --
WOLF: If that's why there was a court case and Daniel Ellsberg was facing 120 years and that judge said this is in the interest of the American people to know that we are engaged in a secret war. And that's what this leak also shows. We're engaged in secretly bombing Yemen, secretly bombing Pakistan and that is in the national interest.
SPITZER: Jeff, I want to ask you a question. You would agree there's a distinction between this person who took it and stole it off the government computer and if it came in the mail as just a thumb drive, as you said, if Assange just put it on a Web site, that would be a different set of issues.
TOOBIN: That would be a different set of issues.
SPITZER: So we need to answer that factual question.
TOOBIN: But you have to also -- there's also an issue of intent.
SPITZER: Correct.
TOOBIN: If you intend to simply blow out 250,000 documents that are at tremendous -- putting individuals at risk, the United States government employees at risk, people who cooperate with the United States government at risk, that is not up to Julian Assange. That is up to the United States government.
WOLF: Scooter Libby did that.
SHIRKY: But Assange went with -- went with "Guardian," went through "Spiegel." In this case, the "Times" by proxy and they redacted some of the documents and held some of the documents back.
TOOBIN: Some of it. They redacted some of it.
WOLF: He asked the Pentagon to work with him on redacting what was sensitive and they would not do so. So who's responsible?
TOOBIN: Who's in charge? Julian Assange is not in charge
WOLF: And let's also notice something else.
TOOBIN: No, actually, Julian Assange is not how democracy works in my opinion.
WOLF: But to ask the Pentagon to redact the sensitive information so that he can release what the rest of us deserve to know and the Pentagon --
SHIRKY: The Congressional Research Service produced a document in October looking back at the August release of the Afghani documents and they said basically what this conversation has come down to which is, a, there may be some -- there is some rationale for charging Assange under the Espionage Act and, b, it's never been tried up against First Amendment, strong First Amendment principles since "New York Times" versus the United States -- the Pentagon papers case.
SPITZER: Which decided what?
SHIRKY: Which decided that "The New York Times" could publish the documents.
SPITZER: Right.
SHIRKY: It's illegal to leak secrets but it's not illegal to publish leaks.
WOLF: Exactly right. Look, we also have to notice something else which is the chilling effect. If you can close down PayPal, intimidate Amazon, if you can drive someone off the Internet then tomorrow it's going to be us. And tomorrow it's going to be you people watching because --
TOOBIN: Slippery slope arguments are almost always bogus. And, you know, the fact that --
(CROSSTALK) SPITZER: One at a time.
WOLF: Exactly how you close down an open society.
TOOBIN: WikiLeaks is not the only evidence of an open society. The Internet is alive and well. It will be alive and well if we --
WOLF: I can't access WikiLeaks anymore.
TOOBIN: Good. Because WikiLeaks --
WOLF: Oh, really?
TOOBIN: Absolutely. Because WikiLeaks is jeopardizing many lives by doing what --
WOLF: You don't know that.
PARKER: No, it absolutely is.
WOLF: And WikiLeaks where someone's life is jeopardized. If that's indeed the case --
PARKER: I spoke to an ambassador this morning who said horror stories are going to emerge. I'm not going to tell you which one I spoke to because he needs to be protected. And he says you have to read these things as people in other countries do. They're not democracies. They're not the American people. They are other regimes.
WOLF: I keep saying this because sometimes when democracies --
PARKER: And nobody wants to talk.
WOLF: The courts decide that.
PARKER: Hold it right there. We've got to take a quick break. But we're going to come back with more of this fascinating conversation. Stay with us.
(COMMERCIAL BREAK)
PARKER: We're back with more discussion on WikiLeaks and Julian Assange. Naomi Wolf, Clay Shirky and Jeff Toobin are here. I want to raise the privacy concern in a minute. But first, Eliot, you go.
SPITZER: Yes, I want to come back, Clay. You were asking about Bob Woodward. We're raising the issue of his book where he relied upon conversations, documents that came out of "The Situation Room" in the White House. In what way is that different, Clay? How would you analyze that? Is that same thing?
SHIRKY: So here's the thing. I know Julian slightly. Not well enough to characterize his motivations, but I can say that he is one of the fastest learners I know. And one of the things he seems to have done is changed his selectivity bias. As we're talking about before the break, what he said now was when I did document dumps it actually wasn't -- it wasn't the right thing to do. Wasn't the right way to run the service. And so now his selectivity is the "Guardian" selectivity, "The New York Times" selectivity. He's not just dumping a quarter of a million cables. He's relying on the existing publishing establishment. So I don't see how he is not himself a publisher.
You said something interesting, Eliot, right at the beginning. You said the man behind the leaked documents. From my point of view, he's the man in the middle of the leaked documents. PFC Bradley Manning has been accused of being the man behind the leaked documents. And when you look at everything from, you know, CIA general counsel's testimony on this, you know, 30 years ago, to the report last August from Congressional Research Service, it all says the obvious crime is removing classified information from a classified system. It is not at all clear that you can prosecute publishers for publishing leaked documents.
SPITZER: Back to Woodward, where does Woodward fit in to this?
SHIRKY: So I think that Woodward is not a criminal for publishing leaked documents but I also think that Assange is not a criminal for publishing leaked documents. However, I also, also think that if I'm wrong about that, that the way in which I would be wrong is going through the court system. Not through an extra legal running of WikiLeaks off the network. The damage to me -- Jeffrey to your earlier point about the slippery slope, the non-slippery slope argument is the State Department has currently committed itself to making it very difficult for autocratic governments to force information off the Internet. And we're suddenly providing not just a recipe but a rationale that's making everyone from Lubchenko (ph) to Kim Jong-il laugh.
TOOBIN: But see, you know, again, this is a slippery slope argument.
SHIRKY: No.
TOOBIN: It is, it is. Because the fact that someone takes United States government documents, secret no, foreign distribution, and says that shouldn't be on the Internet. To say that North Korea shouldn't have a free press, to say that Russia shouldn't allow journalists to -- I mean, I think it is easy to draw a distinction between the two.
WOLF: Jeff, can I talk about the Espionage Act because that's really what's at stake now that they've invoked it. I predicted in my book "The End of America" that sooner or later, journalists would be targeted with the Espionage Act in an effort to close down free speech and (INAUDIBLE) of government. And we have a president for that. In 1917, the Espionage Act was invoked to go after people like us who are criticizing the first World War. Publishers, educators, editors. Wait, and people were put in prison. They were beaten. One guy got a 10-year sentence for reading the First Amendment. And that intimidation effectively closed down dissent for a decade in the United States of America. The Espionage Act has a very dark and dirty history. And when you start to use the Espionage Act, to criminalize what I'm sure you've handled classified documents in your time as a serious journalist, you know perfectly well that every serious journalist has seen or heard about classified information and repeated it. When you start to use the Espionage Act to say reporting is treachery, reporting is spying, it's espionage, you criminalize journalism. And that's the history that our country has shown.
TOOBIN: I recognize there is that history. And I'm familiar with the red scare, too. America is different now.
WOLF: Oh, it's worse in some ways.
TOOBIN: Well, I would disagree.
SPITZER: I want to ask Jeff a question. Because I want to come back to this Woodward distinction. You would agree with Clay and Naomi, I think, that Julian Assange would be precisely Bob Woodward if he had been the recipient of these documents, is that correct?
TOOBIN: I'd have to know a lot more.
SPITZER: But it might be the case.
TOOBIN: It well might be the case.
SPITZER: So you're sort of clear articulation of the beginning that he clearly violated something maybe not so much.
TOOBIN: I'm not sure. Certainly the attorney general of the United States seems to think criminal -- criminal activity was involved here. But I think the wholesale taking of enormous quantities of classified information and putting it on the Internet, even if you don't put all 250,000 documents on, I think that is a meaningful distinction from what Bob Woodward does.
SPITZER: It seems to be that Bob Woodward arguably did something much more egregious. He took real-time decisions about why we were going to war in Afghanistan, the discussions are rationale, where we would go spoke to the most senior political and military officials in the nation and blasted that out in the book. A clear distinction.
TOOBIN: Well, again, there is a distinction in part because the president of the United States and the vice president are allowed to declassify anything they want at any time for any reason. So if the president declassified --
SPITZER: A lot of people who didn't have that power were sourced in that book. Seemed to be speaking in clear violation -- they should be subject to criminal investigations.
TOOBIN: I always wondered why -- why Woodward gets away with it.
(CROSSTALK) PARKER: It's a fascinating conversation. I have mostly listened as a non-lawyer to these arguments. And I never want to make a case against due process because that seems always the right thing to do.
WOLF: Thank you.
PARKER: And yet I also want to say the government should be able to shut down people who are giving away secrets that are going to cause people to lose their lives and put in, you know, and cause our own people abroad not to be able to do their work in safety.
All right then. Naomi Wolf, Clay Shirky and Jeffrey Toobin, fabulous conversation. Thank you.
SHIRKY: Thanks so much.
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