WikiLeaks: A Reminder Of The Pentagon Papers

The Pentagon Papers were a secret history of U.S. involvement in Vietnam. The New York Times published the papers in defiance of the Nixon administration, and was investigated by the White House. Attorney Floyd Abrams, who defended the newspaper in the Pentagon Papers case, talks to Renee Montagne about the laws that apply to WikiLeaks.

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RENEE MONTAGNE, host:

The question of who, exactly, is legally responsible for leaking that secret information, is now a job for And the Justice Department.

Mr. ERIC HOLDER (U.S. Attorney General): We have an active, ongoing criminal investigation with regard to this matter. We are not in a position, as yet, to announce the result of that investigation, but the investigation is ongoing.

MONTAGNE: That's Attorney General Eric Holder speaking to reporters yesterday.

The WikiLeaks story has echoes of a case four decades ago: The publication of "The Pentagon Papers." Those papers were a secret history of U.S. involvement in Vietnam, prepared for the Department of Defense. The New York Times published the papers in defiance of the Nixon administration, and it was investigated by the White House.

To learn more about the laws that apply to WikiLeaks, we called attorney Floyd Abrams. He defended The New York Times in the case of "The Pentagon Papers."

Good morning.

Mr. FLOYD ABRAMS (Attorney): Good morning.

MONTAGNE: Now it is illegal for government employees to leak classified documents and many of these WikiLeaks documents are classified. Can WikiLeaks, which identifies itself as a media organization, and newspapers, disseminate the documents?

Mr. ABRAMS: Well, that's a lot easier to ask than to answer, unfortunately, because we have an espionage act, which was adopted basically in 1917, and which is extremely hard to sort of parse, in terms of knowing answers to what's allowed and what's not allowed. I'd put my answer this way. I think there's a strong argument that newspapers are free to and not at great risk in revealing the information provided to them by a source. I think WikiLeaks is in a somewhat different position, a more dangerous position if the Department of Justice should decide to proceed against them or some of their people.

MONTAGNE: Could the espionage act apply to WikiLeaks?

Mr. ABRAMS: Well, yes, the espionage act can apply to WikiLeaks and I think that there's a pretty good argument that it would apply to WikiLeaks. The language of the statute is very broad and it bars the unauthorized possession or control over basically classified information by outsiders, which they have reason to believe could be used to the injury of the United States.

Well, that's obviously so broad that it can't mean everything it says. So what the courts have done is to read into that, to attach onto it, what we call a scienter requirement - a requirement that you have to mean to do something bad, you know, not just participate in public debate, but to harm the United States in some ways. That's something which could be argued.

MONTAGNE: And Julian Assange, who's the head of WikiLeaks...

Mr. ABRAMS: Yeah.

MONTAGNE: ...has suggested that that's just what he's trying to get.

Mr. ABRAMS: Exactly, exactly. I mean he has he's gone a long ways down the road of talking himself in to a possible violation of the espionage act.

MONTAGNE: Now WikiLeaks is registered in Iceland and has servers all over the world. How do those factors complicate the legal picture?

Mr. ABRAMS: Well, it complicates it in the sense of finding him. Of, you know, if the Department of Justice decides to proceed, it will not be easy. He hides. He takes steps to try to prevent the government or anyone that, you know, from, as you say, with servers all around the world, from you know, in effect fining him or the organization. There was a case in California not so many years ago, which had to be dismissed, against WikiLeaks, because no one could find them.

MONTAGNE: Hmm.

Mr. ABRAMS: And so that's the - and you know, the Department of Justice may well decide that even though WikiLeaks may well have violated the espionage act, it just isn't worth the pain and suffering to fight on to try to fine them, to try to indict them, and to try to convict them.

MONTAGNE: Thank you very much for joining us. Attorney Floyd Abrams represented the New York Times as it published the Pentagon Papers nearly 40 years ago. Thanks very much.

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