Is WikiLeaks Release Brave Or Unethical?

Guests

Robert Baer, intelligence columnist, time.com
Thomas Blanton, director, National Security Archive
Victoria Toensing, founding partner, diGenova & Toensing

Secretary of State Hillary Clinton called the massive leak of diplomatic cables an attack on U.S. foreign policy interests and the international community. WikiLeaks calls its public disclosure whistle-blowing, and argues that the public has a right to know what its government is doing.

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TONY COX, host:

This is TALK OF THE NATION. I'm Tony Cox in Washington. Neal Conan is away.

It is one of the largest government leaks in history. More than 250,000 secret diplomatic documents were obtained by WikiLeaks, which released some of them Sunday in agreement with media outlets in the United States and Europe.

Secretary of State Hillary Clinton called it an attack on U.S. foreign policy interests and the international community. Attorney General Eric Holder announced an ongoing criminal investigation into the leak and those responsible.

The public's response has been mixed, quite honestly. On NPR's news blog The Two-Way, more than half of those who responded to a very unscientific survey, 55 percent, agreed that the public has a right to know, versus 45 percent who said the release is wrong because it puts lives at risk.

Today, part two of our conversation about those leaks, and we examine their ethical and legal consequences. We delve into the ethical issues first, and later in the hour, we will address the legal ramifications, as well.

Our question to you: Was publishing them right, or was it wrong? We'd especially like to hear from those of you in the diplomatic community. Our number here in Washington is 800-989-8255. Our email address is talk@npr.org. And you can join the conversation at our website. Just go to npr.org, and click on TALK OF THE NATION.

We begin with our first guest, Robert Baer. He is a former CIA field officer in the Middle East and now Time.com's intelligence columnist and author of "See No Evil" and, most recently, "The Devil We Know: Dealing with the New Iranian Superpower." He joins us from his home in Berkeley, California. Robert, nice to have you on the show.

Mr. ROBERT BAER (Author, "The Devil We Know"): It's great to be back.

COX: Same question I'm going to put to our second guest I'm going to put to you first, and it is this: Was publishing those documents right or wrong?

Mr. BAER: It was wrong.

COX: And why do you say that?

Mr. BAER: Well, let me put it this way: It was wrong that the government allowed these documents to be stolen. And my reason comes down to not so much protecting sources, because we're not talking about intelligence here, as it is about American credibility.

Other states depend upon our ability to keep secrets to communicate with Washington, especially the Europe states and China, as well. When they tell us things in secret, they expect them to remain in secret. This confidence on Sunday was completely undercut and will be undercut for a long time.

Now, I say this having supported the release of the Pentagon Papers in 1971. It did us a service; it got us out of Vietnam faster than we would have otherwise. But it was mostly internal policy doings in Washington that was leaked.

So there's a nice balance here, but I think that these diplomatic messages just didn't need to get out.

COX: Let me bring in Tom Blanton, who is in studio with us. Tom Blanton is director of the National Security Archive, and as I said, he joins us in the studio. Tom, nice to have you, as well.

Mr. TOM BLANTON (Director, National Security Archive): Pleasure to be here, Tony.

COX: Same question: Right or wrong?

Mr. BLANTON: You know, for 25 years, we've been trying to get documents like this out of the government using the rule-of-law system, using the Freedom of Information Act. And it's hard work. It's a lot harder work than getting a CD or a thumb drive in the mail from a disaffected private in the Army.

And I do agree with Bob Baer to the extent the government does have a right to keep secrets. There are real secrets. There are real secrets that put people in danger. There are real secrets like weapons systems design.

But I'll tell you, on this particular story: Was it right to publish these materials? I end up someplace closer to the overall NPR audience, which as you said is pretty mixed. Because on the one hand, on the one hand I think it's right to publish this kind of documentation the way the mainstream media that WikiLeaks used to say it despised is doing, which is checking with the government about what's really sensitive, about redacting the names of people, cutting them out if they really would put somebody at risk, and that overall, us knowing more about what our government does is a good thing.

But there's a necessary tension, and I'm coming from the standpoint of a journalist, and Mr. Baer's coming from the standpoint of a former government official. And there is a necessary tension between us. It's my job to try to get these documents loose.

What I disagree with in terms of the WikiLeaks methodology is the recklessness of it. They're not about creating a rule-of-law process or making the Freedom of Information Act work, where you have that dialogue with the government, the government gets a chance to censor the stuff that would put anybody at risk.

COX: Well, let me try to make sure that I'm following the both of you because it sounds as if you agree and disagree at the same time. If I'm understanding you, Mr. Baer, you are opposed to the leaks of these documents on the basis that it does harm to the government and that the government has the right to withhold certain sensitive information. Is that a correct assessment of what your position is it?

Mr. BAER: Not just a right. It has the necessity to withhold certain information.

COX: Okay, now with you, Mr. Blanton, what you are suggesting, and because of your involvement with the National Archives...

Mr. BLANTON: National Security Archives. It's a nonprofit.

COX: National Security Archives, excuse me. You are in favor of getting -having sunshine, so to speak, with regard to what the government does, but you don't like the way this was done by this organization.

Mr. BLANTON: That's right because I think we've got to look at in the I agree with Mr. Baer that the government absolutely has a right and necessity to keep things secret that would really damage national security.

But one of the things this leak shows, in these 251,000 diplomatic cables now remember, we've only got 291 of them on the Web actually as of about 30 minutes ago, when I checked, and we have the excerpts and selections that the mainstream news people have put up. So we don't know the full dimensions of the problem. We've only got summaries of most of it by reporters who have tried to go through it.

But one of the things I think we're going to conclude, when we come to the end of the process, is yet again, this leak proves that the government massively over-classifies information, that the system just is on a knee-jerk reflex to stamp secret on documents and that much of what even is in this release, should have, could have been out in public years ago.

COX: Let me come back to you, Bob Baer, to ask this question because of your stated position with regard to the release of these documents. Where do you draw the line on what should or should not be published?

Mr. BAER: Oh, that's the difficult question, and that's the question we can't answer very well. There should be leaks out of the government. The government is - often acts incompetently or dishonestly, and the press needs to get that out. The question is: Who decides what is put out in the public?

Let me go back to the WikiLeaks. I disagree with putting out messages about what the Chinese are telling us about North Korea. We depend upon the Chinese to protect our troops in Korea during these maneuvers, and the only real insight we have into Pyongyang is through China, is through Peking.

And now the Chinese are going to be reluctant to talk to us, and that was a decision that WikiLeaks and The New York Times shouldn't have made. In this case, it should have been the government. And of course, the problem is the government is reluctant to release anything.

And, you know, the it just goes back and forth. I just take specific examples out of these WikiLeaks and point out how damaging they are and how truly unnecessary they are, the leaks, because most of this stuff we already knew. The embarrassment is that these Arab leaders or East Asian leaders, their opinions were put in the public domain, and they don't have any trust in us anymore.

COX: Let me...

Mr. BLANTON: Well, I disagree with that.

COX: Go indeed, make your point.

Mr. BLANTON: I don't think they've lost their trust in us, and I think there's a temper-tantrum approach to these - this leak that can come from some of these governments. But I thought the grownup way that the Turks, for example, yesterday dealt with this - Turkish foreign minister said to Hillary Clinton's face: We've got a solid enough relationship; we're going to be talking to you despite this leak. We understand what happened. And then...

COX: But China's a different situation.

Mr. BLANTON: China's a different situation, and with the authoritarian countries it's a tougher call, but then somebody in the Turkish foreign ministry said, on background to some reporter: And you should see what we say about you in our cables.

(Soundbite of laughter)

COX: Here's a question for you, Tom Blanton, since you are involved in trying to get information that the government doesn't want out, to get it out into the public domain. When you do that, as has been done in this case, is there not the danger, the ever-present danger, of collateral damage, diplomatically or otherwise? And how do you decide what risk is worth the risk to national security?

Mr. BLANTON: That goes to your very tough question. Where do we draw the line? And that's a tough call. It's even a case-by-case call. We're going to push further than the government is comfortable with.

But there are some good common-sense approaches, and it was interesting to me to read The New York Times editors' notes and their back-and-forth with readers about where they draw the line because they say they draw the line - they're journalists, they have a code of ethics. It requires them to reach out to the other side of stories or the multiple sides of stories. It requires them to consult with government about these documents, about what damages. They say if it's a person identified who'd be at risk, if the documents say strictly protect this information source, if it's a negotiating bottom line before the negotiation, if it's a weapons system design, those are real secrets. Anybody would recognize them. Those should be withheld and, from these leaked documents, redacted.

So The New York Times is in the censorship business, which is fascinating. But then they say: Where we don't draw the line is we won't cover official embarrassment. And there I think Bob Baer is on to something where he talks about that China document because it's extraordinary. It's the deputy secretary of state, Jim Steinberger(ph) Jim Steinberg, just a year ago meeting with a top state council guy in China, where they talk about North Korea.

And I think there's a good argument The New York Times published it and addressed it directly when they said: We, you know, we believe this is of such importance to matters of war and peace that it should not just be discussed in secret.

And that is a really interesting dynamic, but it's, as you say, a constant tension.

COX: Well, one of the things, you mention The New York Times editors and their back-and-forth with readers, who were very unhappy, by the way, about what The New York Times did.

Mr. BLANTON: That's right.

COX: Their answer was - this is a quote from the editor of The New York Times: We get to decide because America is cursed with a free press.

Mr. BLANTON: With a free press.

COX: Those were his words. Coming back to you, Bob Baer, before we take a short break, and we'll continue this on the other side, we talk about collateral damage, and you mention China as one of those things that, you know, in hindsight probably should not have been among the other documents.

From what you know about this, and if you don't have enough time to answer it before we go to the break, I'll give you a chance to on the other side: Is the in the main, this material that we are seeing and hearing and hand-wringing over, is it that important?

Mr. BAER: No, it's not that important. And I go back: It's an issue of credibility. How much trust can these foreign countries have in an open society like the one we live in? And does it hurt our national security?

And of course, there's argument on both side, but in some cases, it really, really hurts it.

COX: So is it as much about embarrassment as anything else?

Mr. BAER: Yes, it's about embarrassment. We know that the Chinese don't like the North Koreans, don't trust them and don't know much about them, but putting it in black and white is what has upset the Chinese.

COX: All right, we're going to talk more about the WikiLeaks release and the documents and the legal and ethical issues surrounding them. Was publishing them right or wrong? Our number here, 800-989-8255. The email address is talk@npr.org. I'm Tony Cox. It's TALK OF THE NATION from NPR News.

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COX: This is TALK OF THE NATION from NPR News. I'm Tony Cox, sitting in for Neal Conan.

Yesterday, we talked about what's in the massive leak of U.S. government cables. You can find many of those details at npr.org. Today our focus is on the legal and ethical questions that arise in this case.

For example: Was publishing them right, or was it wrong? We would especially like to hear from those of you who have worked in the diplomatic community. Give us a call, 800-989-8255. The email address is talk@npr.org. And to join the conversation, just go to our website, npr.org, and click on TALK OF THE NATION.

Our guests are Robert Baer, a former Middle East CIA field officer and author the book "The Devil We Know," now Time.com's intelligence columnist. We are also joined in-studio by Tom Blanton, director of the National Security Archive.

Let's pick up the conversation before. We were trying to put I don't want to use the word spin, but we were trying to get our hands around the difficulty with what's appropriate, what's inappropriate. And I was trying to determine whether or not there was agreement or disagreement between you, Tom, and you, Bob.

Here's a question for you, Bob: We saw information on Iran and other sensitive documents. As a former operative, does the public need to know what is happening in a place like Iran?

Mr. BAER: It does need to know what's happening in a place like Iran. It needs an honest assessment. These assessments are done by the intelligence community. They're given to Congress. Declassified assessments come out. And the system has worked.

In, was it 2003, the CIA came out with an assessment that Iran had suspended its nuclear bomb production, and there was a way, through Congress, to get this information out.

Remember, Congress should ultimately be, you know, the watchdog on the White House, on what goes on there and the misuse of intelligence and the misuse of foreign policy. And, you know, Senator Kerry is the one who should be looking at documents like this in his office and deciding what's going to go out there, or other members of Congress.

The problem is, you know, somebody like Tom's organization is responsible, and they work with the government, and they're not going to put things out that there's not an agreement. And he'll fight for this in the Freedom of Information Act, just as I fight with the CIA to write my books.

COX: Well, before we take a call, and Matt(ph) in Fort Myers, Florida, hang on, we're coming to you next, before we take a call: How can you rely on the government to issue these kinds of documents when it takes, apparently, people like Mr. Stanton(ph) here or WikiLeaks in this instance to get out information that we might not otherwise have found out about?

Mr. BLANTON: It's a constant battle, Tony. I think that's the problem is you've got to constantly keep up the pressure.

But I wanted to go back to Bob Baer's point about the damage here is really to the confidence that other countries would have in being able to talk to us. Can they trust an open society?

And I think this is I think there was some damage to that ability to have diplomatic communications, but I don't want to overstate that damage because back when the Freedom of Information Act was passed, this was one of the major arguments against it: Wait a second, no foreign country would talk to us anymore.

And yet we made a judgment as a society that it was more important to keep our government accountable and have actual, public debate about questions of war and peace, than to leave them inside little compartments that would lead to things like the invasion of Iraq, for example.

COX: And the argument of a free press. Let's take a phone call. This is Matt in Fort Myers, Florida. Matt, welcome to TALK OF THE NATION.

MATT (Caller): Thank you very much for having me on the air.

COX: You're welcome.

MATT: I do think it was a good thing that WikiLeaks released the documents. I found it especially shocking the information about Saudi Arabia being a primary supporter of al-Qaida. And I liked maybe everybody could think back to our recent arms deal with Saudi Arabia, and I'm thinking would the American people would have been a lot more upset about that if they'd have known that Saudi Arabia was a primary supporter of al-Qaida.

COX: Thank you very much for the call. What he is saying, Bob Blanton I'm sorry, Mr. Stanton, Mr. Blanton, Tom Blanton, excuse me. What he is saying is very similar to what a number of the people on the NPR blog, The Two-Way, said, as well as people who wrote in to The New York Times in terms of you know, I would rather know than not know. I would rather take the risk of knowing than not knowing.

Here's another phone call. Let's take this and see what Steve(ph) from Marin County, California, has to say. Steve, welcome to TALK OF THE NATION.

STEVE (Caller): Hi, thanks for letting me on the program. I can offer the perspective of, excuse me, a working-level diplomat. I was a political economic reporting officer in the Ivory Coast in West Africa, right next door to Liberia, and in Bulgaria.

And I think the point that I would make is it was my job to go out and talk to everybody from prime ministers to striking students to, you know, drunken military to, you know, taxi drivers and find out what was going on in the country, what were people thinking, you know, where was this all heading.

And I would write that up in some analysis, and I would send it back to Washington. It's what a reporting officer does. And if and I mean, I think this was a really bad thing just in very practical terms. If people are afraid to talk to me, and if I'm afraid to say something, you know, to be honest in my assessment of the information I send back to Washington, it effectively blinds us. It makes it really impossible for us to be intelligent and informed about what's happening in the world.

COX: Bob, thank you very much. Let me ask Bob Baer to speak about that because in your former role as a CIA operative, you know, how true is that?

Mr. BAER: There's nothing more important than source protection because the better the source, the more at-risk he will be and the more he will want his name kept out of the press. And this goes for State Department, as well, who spends a lot of time talking to dissidents in authoritative countries and regimes.

They will go to human rights groups, which will give them information, and in a State Department message, that organization has to be named and usually the person who's talking. And there's a certain understanding when you talk to a source that his name will be never made public.

That has been thrown into doubt. So yes, I mean, it's an excellent comment. We are going to become more isolated and more blind.

COX: Here are some emails, and I want to read three of them and then get I'll come to you first, Tom, and then I'll come back to Bob. Here's the first one. This is from Dave(ph). Dave says: Censorship is the problem. WikiLeaks is easing us into reality. It's going to be a bumpy road, but I think they've done it in a smart and responsible way so far.

Here's another one. This is - I think WikiLeaks should be more selective about what they release. This latest round isn't like the Pentagon Papers, where the point was to make the government stop a grand deception and force the administration to get real with people.

These diplomatic cables are merely embarrassing and counterproductive because of their candor, but what is the point? It is not helpful to the people in any way. It is just self-aggrandizing. That's Eric(ph).

Here's one other one. This is from Jesse(ph) in Dover, New Hampshire: Julian Assange is a true hero he of course being the person heading up WikiLeaks the Daniel Ellsberg of the modern age. If the government's antics can't stand the light of day, then they deserve to be outed and purged. Shame on them for trying to vilify Mr. Assange. The bully was caught with his hand in the cookie jar again, and he's going to beat up whoever saw him.

Since you had problems, Tom Blanton, with the way WikiLeaks went about this, what do you think they should have done?

Mr. BLANTON: WikiLeaks has had a pretty interesting trajectory, and if you took them a year ago and today, you'd see two different modes of operation. A year ago, they were closer to the old anarchist model, like the guy who shot Archduke Ferdinand in 1914 in Sarajevo. You steal the secrets of the powerful, and you throw those secrets in those faces, and somehow that's going to bring down the system. That's the kind of anarchist view.

And that has changed over this last year. It changed so WikiLeaks started working with mainstream media outfits to validate and check the information they were being given. It changed because WikiLeaks itself even sought a dialogue with the government just over the weekend about who were those potential informants who would be put at risk, that's Bob Baer's point.

I think Julian Assange and WikiLeaks have heard a ton from journalists, who said: You're incredibly arrogant. You're re-creating the same problems you're accusing the powerful of doing by claiming that you've got the power to publish anything, no matter how invasive of somebody's privacy or of a real secret or if it puts somebody at risk.

WikiLeaks has gotten pushback from Human Rights Watch and the other human rights groups, who have all said: Wait a second, you're putting at risk the people who talked to that diplomatic official in Bulgaria or Ivory Coast who went out in the street to find out what's going on.

And WikiLeaks is beginning to change its MO to enter into exactly that journalistic code of ethics, which I think is the right way to do it.

I look at how The New York Times and particularly The Times has approached this, stating real clearly: Here's what our guidelines are for what we release and what we don't release. Here's the basis that we do have the right to decide. We are in constant discussion with responsible officials in the government to even withhold and censor ourselves if it would really do damage. But we're not going to cover up embarrassment, and we are going to push back against a system that massively over-classifies and makes too much secret.

COX: Do you and Bob Baer believe that WikiLeaks is targeting the United States with the release of these kinds of documents? And I ask that because there does not appear to be, and correct me if I'm wrong, any instant where they have done this with any other nation.

Mr. BLANTON: Well, other people if Bradley Manning, the Chinese version of Bradley Manning, the Army private who supposedly leaked these, if there was a Chinese version, he'd probably already have been shot. So it is a fact that open societies leak more than closed societies. And it sure would be nice for all of us to put more pressure on getting the stuff out of the Chinese side.

And I have to say - and this is the counterargument, even on Bob Baer's example of that Chinese document that's going to make him so upset - it's so rare for the actual words of the authoritarian leaders of regimes like this to be out there and to be on the front pages, that in a way you can argue that that's a service, that that's a - it reduces their power to a certain degree.

And it may turn out in the long run like the Tiananmen Papers leaked from inside China, like the transcripts we got loose through the Freedom of Information Act of Mao Tse-tung's meeting with Henry Kissinger. You know, our website got blocked in China because they didn't want the Chinese people to read what Mao Tse-tung had said and the deals he brokered.

COX: Well, let me bring Bob Baer in to get your comment, and Bart(ph) in Kansas, hold on. Your point is what we want to hit as well. What's your reaction to the suggestion, Bob Baer, that the United States is being specifically targeted by WikiLeaks with these kinds of disclosures?

Mr. BAER: Well, I think it's - I don't think it's - I think they would have gone after Britain as well, but they've got a tighter hold on information. They're not as sloppy as we are, but we - you know, and I think it's a mistake to blame the press or The New York Times or anybody for releasing these documents. What we need to do is find a way to conduct secret diplomacy where we're avoiding the chances of this getting out.

And let me be very specific. At some point, the West is going to decide whether it's going to go after Iran's nuclear weapons, its sites and bomb them. I totally disagree with it. At no point, we should. But at some point, we're going to seek overflight clearance. And there's going to be diplomatic exchanges between Saudi Arabia, Bahrain, the United Arab Emirates and so forth, whether they're going to give these clearances. And does the public have the right to know, to read this traffic before a strike, putting our pilots in danger? And I think the answer - 90 percent of your listeners - will be no. They don't need to know, and probably also we don't need to attack Iran, but that's another question.

COX: Bob, hold on for a minute. We've got to do this. We are talking about WikiLeaks. Should the site have released that massive trove of secret government documents? You're listening to TALK OF THE NATION from NPR News.

All right, Bob, I had to cut you off just because I had to get that identification in there and also I want to give this listener who's been holding on very patiently the opportunity to chime in, and we can respond to this person. This is Bart from Shawnee, Kansas. Bart, welcome to TALK OF THE NATION. You're on the air.

BART (Caller): Hey, thanks. Hey, I think everyone is missing a huge point. OK. The documents were stolen. They're stolen property. And just because a car is stolen, it doesn't mean you could buy it, OK? Just because you have possession of it doesn't mean you can publish it. These are documents that did not belong to an individual. They belonged to a government, OK? So taking them does not give you ownership and allow you to give to someone else to publish. I don't see why that's not - that's a huge point that's being missed, I think.

COX: Well, thank you for the call. We're going to talk about the legality of that in the upcoming segment. But what about that? Since you have been involved, Tom Blanton, with getting documents legally, what about this? His point is well taken, is it not?

Mr. BLANTON: And that's where, I think, the prosecution is going to take place. It already is, I think, against Bradley Manning, against the leaker. I think the government does have the right and has done it many, many times to strip people of their clearances for leaking or take away their jobs, even their livelihood. I think where the government goes wrong is when it talks about prosecuting the press or prosecuting the publishing function. And there, this is the tension, I think, your - Bart from Kansas is on to something. The press will cover the reality of that stolen property. The stealing is a matter between the government and the employee.

COX: Well, that's an interesting thing. Let me read this to you. This is an email that we just got from Richard(ph).

Greetings. I am an Air Force veteran. I held a top-secret clearance. It is flat wrong to release any classified information. It doesn't matter if it's frivolous. Diplomats speak back and forth like family members do. It is not unusual to hear someone say something about a family member that the person would not say to their face.

WikiLeaks is not about a targeted policy problem or wrongful act that it is disclosing. It is about vandalism. If WikiLeaks wants to do a real global service, it should disclose the people who created the financial meltdown. They should disclose the miscreants who are dodging taxes by stashing their money in Switzerland, Cayman Islands, et cetera. There are hosts of white-collar crimes that need the sunlight disinfectant. The WikiLeaks action is pure vandalism. That's in all capitals. I thank you very much. This is from Richard.

Our time is short, so I want to see if we are able to put in perspective for the audience what we have concluded if anything. And I'll come to you first, Bob, to ask you, you said that it was wrong but that on - under certain conditions, it's OK? Yes?

Mr. BAER: Absolutely. And I go back to the Pentagon Papers, which didn't involve military or diplomatic secrets. It involved, principally, policy debates and manipulation of the American public. And there's a much stronger argument than that, but that argument doesn't carry us into secret, sensitive diplomatic exchanges or military operations.

COX: And you, Tom Blanton, say that if they had done it the right way it would have been OK, but the way they did it makes it all wrong.

Mr. BLANTON: No, to the extent that it was an attack, and I think in their anarchist mode, they meant it as an attack. Hillary Clinton was right when she called it an attack. I think in their journalism mode, that's a different matter, and that's something we're all working on. And I think where the listener - the last listener made this point. It's flat wrong to release classified information. I think that's an incorrect statement because way too much is classified.

Our problem with our security system and why a Bradley Manning can get his hands on all these cables is we got low fences around a vast prairie because the government classifies just about everything. When what we need are really high fences around a small graveyard of what's really sensitive.

COX: What's standing in the way of that happening?

Mr. BLANTON: I think the reflexive law of bureaucracy is everywhere all over the world to use the secrecy system to protect their own turf, their budgets and their rear ends.

COX: Bob, really quickly. You agree with that?

Mr. BAER: Tom is right. We're overclassifying. We're keeping too much out of the public domain. And if we protected the true secrets intelligently we wouldn't have this problem.

COX: Well, it's interesting to think that the CIA - a former operative would support something like this to the extent that you do. I want to be sure to get the (unintelligible).

Mr. BLANTON: I think Bob got an education as he tried to get his book texts cleared by those classifiers inside CIA.

COX: It has been wonderful talking to the both of you. I appreciate it. Tom Blanton, director of the National Security Archive. Bob Baer, a former CIA intelligence operative. We have talked now about the ethical questions surrounding the WikiLeaks documents. There are also a number of legal issues involved as well. We'll look at some of those next and your letters. I'm Tony Cox. It is TALK OF THE NATION from NPR News.

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COX: Now, we turn to the legal issue surrounding the release of those WikiLeaks documents, and there are many. For example, is it a crime? What kind? Who can be held accountable, if anyone or any organization? What can the U.S. government do to stop further leaks? Is this constitutionally protected?

Attorney General Eric Holder has already announced an ongoing criminal investigation into the leaks, but what will come of it remains to be seen. In a moment, we talk to a legal expert on national security and intelligence matters. And if you have questions about the legal issues involved here, call us. Our number, 800-989-8255. The email address, talk@npr.org. And to join the conversation at our website, just go to npr.org and click on TALK OF THE NATION.

We begin now with Victoria Toensing. She is founding partner of the Washington, D.C. firm diGenova & Toensing. She joins us here in Studio 3A. Nice to have you.

Ms. VICTORIA TOENSING (Founding Partner, diGenova & Toensing): Good day, Tony.

COX: Let's begin with this. Who can - well no, actually let me begin with this first. Not who can the government prosecute - can the government prosecute, period? Has a crime been committed?

Ms. TOENSING: A crime has certainly been committed.

COX: And that crime is what?

Ms. TOENSING: Violation of the espionage statutes: 18 USC, 793, 798 - for all of you bloggers out there or people who are computer geeks and want to go find it in the statutes - but these laws are old. They were passed between World War I and the Korean War.

COX: Is this the 1917 law you're referring to?

Ms. TOENSING: The - yes.

COX: The (unintelligible)...

Ms. TOENSING: But there were more of them passed on...

COX: ...since that.

Ms. TOENSING: ...up into 1950. So they're so antiquated as far as how information spreads. But it was after these laws were passed that the Supreme Court held in the Pentagon Papers, which you talked about in the last half hour, last segment, that the Supreme Court said you, government, the First Amendment doesn't allow you, government, to stop The New York Times from publishing the Pentagon Papers. So the government...

COX: Even if the papers are stolen? So you can still publish stolen material. We had a caller a few moments ago who suggested that if you still a car, you know, and you do something with that car, even though you weren't the person that stole it, that's still a crime even for you. So the question I'm asking...

Ms. TOENSING: Well, technically, it is, of course.

COX: It is.

Ms. TOENSING: But we have that First Amendment coming in there and making a play where we don't - with reselling a stolen car. Now, there is no problem about Private Manning or whoever steals the information from being prosecuted because that person has made a contract with the government. You give me access to the classified information, and I promise not to ever divulge it to anybody, unless they're, you know, have the same clearances. So he violated his contractual duty with the U.S. government. He's a goner as far as the prosecution. And the government has always gone after the people, if they could find them.

COX: Now, what about Julian Assange, the head of WikiLeaks?

Ms. TOENSING: Well, that's - he becomes like The New York Times, Julian Assange, except for the, you know, the warrant out for talking to him about the sexual assaults and rape. But, in other respects, he and WikiLeaks are rather like The New York Times in that they're the publishers. Our government has never ever gone after the person who publishes the information, only after the person who steals it. So it's become not only a constitutional matter for the Supreme Court but a policy for the government. They haven't pushed the Supreme Court, again, on prior restraint.

COX: These are extraordinary circumstances that we are dealing with. And historically, or at least in the last decade or so, the United States has gone to, when it has seen fit, to extraordinary lengths to deal with it. So I give you that as a preface for this caller that I'm about to take from Topeka, Kansas. This is Jonathan. Jonathan, welcome to TALK OF THE NATION. You're on the air.

JONATHAN (Caller): Well, thank you much. Given that it is hard to prosecute in court, WikiLeaks, if you chose to, because you have to identify them themselves - and that was proved virtually impossible because of being Internet - my question remains, with the very likely death in the past of other people and the effect to national security, why can WikiLeaks not be put on terrorist list and their assets really frozen and taken and prosecuted, internationally, that way?

COX: Thank you very much. Well, that's what I meant by extraordinary measures, potentially.

Ms. TOENSING: Well, Peter King, a congressman from New York, is advocating...

COX: To do just the very thing.

Ms. TOENSING: ...to do just that. And I think that would have to be come from Congress. There are certain criteria that the State Department has for listing an organization. They have to have participated in violent acts, as I understand that law. I haven't looked at it in depth, recently.

COX: Mm-hmm.

Ms. TOENSING: But the State Department's list and Congress could so pass resolutions or legislations, saying to the State Department, do this. But I don't know that they would have the criteria that's really present for terrorists who use violence. I mean, that's the old concept of that terrorist list.

COX: So what we have here, if I'm understanding you correctly, is we have a violation of the law, allegedly, by Private Manning...

Ms. TOENSING: Yes.

COX: ...one that seems clearer in terms of the interpretation of the law.

Ms. TOENSING: Very clear.

COX: At the same time, we have the furtherance of this material by people who are protected by the law because of the First Amendment.

Ms. TOENSING: By the First Amendment. And it's interesting because, you know, the language that the Supreme Court used in what's called prior restraint - in the prior restraint is that the court says, government, you can't restrain them prior to publication. It's in the law. It's called prior restraint. The court the Supreme Court said, prior restraints are the most serious and least tolerable infringement on First Amendment's rights. That's pretty strong language, and they were looking at the Pentagon papers.

Well, I say as a matter of legal philosophy, if you say that you can't, you know, here's this information or you can't do a prior restraint on it, the same information is printed, how can you send someone to jail for having printed it - under the First Amendment?

COX: Our guest is Victoria Toensing. She is founding partner of the Washington, D.C. law firm, diGenova and Toensing. She joins us here in Studio 3A. If you like to join the conversation, you can give us a call at 800-989-8255, or reach us via email at talk@npr.org.

Let's go to San Francisco. We have on the line I believe it's Krypto(ph), if I'm reading it correctly. Welcome to TALK OF THE NATION.

KRYPTO (Caller): Thank you very much. I'm of the personal opinion that the papers belonged to the government which, in turn, belongs to the people. So I'm still a little on the fence as to whether an actual wrong has been done here in the end. But I would like to first say that a right and a wrong has been done. And this is the definition of whistle-blowing. But I wanted to ask about the difference between I've heard the word treason used about this. And I wanted to know I know that there's something called petty treason, which is the crime of murdering your master, as opposed to high treason, which is the crime of betraying your country.

And I wanted to find out your opinion as to whether this soldier, for example, who's alleged to have released the actual documents or at least obtained them, may simply be guilty of petty treason, the crime of murdering his master in a metaphorical sense.

COX: Well, let's see if we can get the thank you for that.

Ms. TOENSING: I can assure you petty treason is not going to be looked at. I've never even heard of petty treason. I know real treason and that's in the Constitution. You have to rather be on the battlefields for that. And so, this is not - treason is not applicable to this in any way whatsoever. The Justice Department will be looking at statutes, the specific intent of Congress to prohibit the disclosure of this information.

But, you know, we've seen whistle-blowing. And I look at this information and I say, hmm, I don't think this is principled disclosure. It looks like more prurient interest disclosure. What interest do we have? What wrongdoing was revealed about a wedding in the Russian Caucasus states, you know? About who got drunk and when?

COX: Yes, yes, I see.

Ms. TOENSING: Was there some policy there, of the United States government, that we needed to correct? I mean, we really have to and this is what the courts do, they balance.

COX: So there's no prima facie case in terms of the any wrongdoing? You're questioning whether or not there is?

Ms. TOENSING: I say there's a lot of material out there that was a document dump, as we call it in the legal world.

COX: The document dump. Here's let's go to Steven(ph) from Windham, Connecticut, who has another idea and a question about how this might be prosecuted. Steven, welcome to TALK OF THE NATION.

STEVEN (Caller): Hey, thank you. Thank you for taking my call. I totally agree with the lawyer. It's going to be really hard to nail Julian Assange, even though he comes across as an egomaniac to me. But what about prosecuting him under the RICO Act?

COX: Thank you for that, Steven.

Ms. TOENSING: You know, RICO is a very specific act. You have to have five underlying crimes. It's varies. The only place you can go are though shall not reveal classified information or defense information. But you don't even if we did prosecute this Assange, what country would we get in Europe to extradite him to us? If I'm at the Justice Department, I'm looking at that as a real problem. Look at the Mark Rich who escaped any extradition to the United States for years and...

COX: Yeah. No point in prosecuting if you don't have a the potential for a winnable process.

Ms. TOENSING: You know, because this is - and I'm going to tell you because I'm a former federal Justice Department deputy assistant attorney general, and so we looked at these things. In the 1980s, when we were going to prosecute terrorists, we said we cannot screw up these kinds of prosecutions. If we're going to go with this, we better be sure we have a good case and that we can get the person. So we have to - the Justice Department has to look at that or it's going to lose credibility.

COX: We'll take another call in just a second. First, let me say we are talking about the massive leak of diplomatic cables, and whether or not anyone can be prosecuted for publishing them. You are listening to TALK OF THE NATION from NPR News.

All right, let's go now to Marie. She's standing by in Williams Bay - let me make sure I hit the right button here. There you are. Hi, Marie. Welcome to TALK OF THE NATION.

MARIE (Caller): Hello. Thank you. My question is where is the crime? WikiLeaks got the news and got the news to us. The documents belong to the people. It wasn't done by a foreign country, so I think you got to identify what the crime is.

Ms. TOENSING: Well, the crime is taking classified information...

COX: Right.

Ms. TOENSING: ...and giving it to someone else. Private Manning did that. And so WikiLeaks is in possession of stolen property. It's a very simple criminal proposition. It's just - does First Amendment comment interfere with the prosecution? Let me just say something about WikiLeaks, because there's all this touting for WikiLeaks. You know, our government was always based on balancing power. WikiLeaks has developed a lot of power recently, and I'm fearful because the last thing they did, I heard - it must be true, I heard it on the news in the last 24 hours...

COX: Yes, of course.

Ms. TOENSING: ...that they were threatening that they were going to bring -they had information they were going to reveal in January...

COX: For the banks, yeah.

Ms. TOENSING: ...about U.S. banks.

COX: Yeah.

Ms. TOENSING: Now, what if people connected with WikiLeaks have stock in banks other than the two banks they're going to bring down? I mean, WikiLeaks better get some transparency they want so much from the U.S. government.

COX: This is obviously a very tangled legal kind of issue. We appreciate the time that you have spent, helping us to sort it out. We can't get the - all the answers because it's too much still to be developed, questions that we don't have answers to.

Victoria Toensing is founding partner of the Washington, D.C. firm diGenova and Toensing. She joined us here, very graciously, in Studio 3A. Thank you again very much.

Ms. TOENSING: Thank you. Good to see you.

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