Also in this playlist...
This transcript is automatically generated
Founder Julian -- -- sits in -- London jail facing extradition to Sweden on sex charges some American officials are demanding he be tried in the United States.
For the release of thousands of classified documents including last week's -- of sensitive State Department cable.
But -- -- be prosecuted under American law and should he be.
Michael -- -- is a former attorney general of the United States he joins me now judge.
Welcome great to have you back here when.
So your successor as attorney general Eric Holder has said -- his department is investigating whether to prosecute.
-- and and would like to.
If you were still attorney general what -- Would you be looking.
I'd be looking at two sections of what's called the espionage act one of which.
From analyzes the circulation.
Of defense related information.
Which circuit criminalized the publication.
Classified and this -- the espionage act of 1970.
World War I statute an -- but -- okay what you have to prove.
-- get a conviction.
On the SPD have to prove -- for example that the leaks damage national security.
Have to prove that they were done with the intent to damage the United States.
You have to prove.
In order to get there there's one of those sections that carries the death.
If you proved that a result of the -- was disclosed the identity of the US agent and -- -- lost his life.
-- penalty up to death -- Now what would the impact of a -- on the prosecution be if you get a comment like we had last week by the Defense Secretary Robert Gates who said well some of that.
Criticism of this is overwrought some of the fears about the damage done by the release of these diplomatic cables -- overwrought.
That would hurt the key prosecution potentially -- would -- the prosecution potentially presumably the defense -- uses a government in addition.
But it would not certainly not all of -- -- the espionage act has never been used before it's in my knowledge and you can correct me if I'm wrong but as far as I've looked back on it never been used against a publisher.
Not even in World War II when the Chicago Tribune disclosed that we had.
Suggestion that we had broken the Japanese code after the battle of midway FDR decided that administration not to prosecute.
Why would you make an exception.
In this case well the reasons that they decided not to prosecute in World War II was not because -- -- didn't line.
But rather because the Japanese apparently had.
Picked up on the story can't read the tribute.
-- pretty effective.
In subscription must've liked him.
But they didn't pick up on the story and change their clothes and was felt that if they prosecuted colonel McCormick that would have.
Me an apparent that we publisher to publisher that for.
That would have made it apparent that we had broken code.
And therefore it would have made it worse from the national security standpoint as a matter discretion they stopped.
The investigation before with a returned an indictment had nothing to do with the question whether prosecutors.
Are -- -- -- claim.
For just like I just add one thing is in the in the these disclosures that the Ellsberg disclosures right.
And the Pentagon papers case and in nineteen right seventies.
The majority of the Supreme Court said that although they would not stop publication and advance the question of what they can be prosecution after which was a completely different thing.
So I left that possibility -- but -- didn't but a majority the court has never taken a position.
On the espionage act and whether it actually would violate the First Amendment that's an open question idea.
But its -- open question theoretically.
I don't frankly see if you think it would stand yes why.
Because the First Amendment doesn't protect speech.
That causes certain prescribed certain defined injury doesn't protect prosecution -- -- Doesn't protect prosecution for shouting fire crowded theater doesn't protect prosecution for fraud doesn't protect prosecution for -- On this interesting formulation in the first and then it says.
And make no law.
-- not doesn't take abridging freedom of speech it's as abridging the freedom of speech and it's the freedom of speech that was known.
At the time and that's been known since IE freedom of speech within.
Certainly within rational limits.
Well a lot of publishers would argue.
That if you go after a -- Then how do you stop at.
Him and not go after say the New York Times or other newspapers and might have published.
The cables as well.
LB it with a little more responsibility indiscretions sorting them novel about.
You exercise discretion.
And the answer to that may be that perhaps the New York Times looked hesitate before doing something that.
So you would not stop necessarily just dead -- -- -- stopped.
In the abstract and no I think that.
In in this case from what I know I would stop with -- so -- and those who are acting in direct concert with.
So -- and you would say because the times has just re publishing -- perhaps -- not as culpable is that the distinction your drive.
The distinction on drawing is that it is.
From us from a policy standpoint prostitutes on their case with respect to -- -- With regard to the times.
I think it's a matter discretion with -- -- -- let me ask you a related but slightly different question you've been and the government you've seen what is classified it.
The late senator Daniel Patrick Moynihan of the year -- -- government just keeps too many secrets.
You agree with.
They ought to declassify a lot more things so that we can focus on the part the secrets protecting the -- which were really need to protect I think that it would help.
And I think that would also help to put some controls in the same way that you're -- when you use your credit card.
At some point if if charges start being one up.
That -- and usually get a cool asking whether you're vacationing in the Bahamas and you just left.
With the stereo but right.
People have access to classified information and there are controls possible should show that somebody in Toledo's dumping 500000 documents -- asked the question.
-- I took the -- a fascinating issue and no doubt going to be interest to see how it goes thanks so much for being here.
Filter by section