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.
ERIC HOLDER: 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: Good morning.
FLOYD ABRAMS: 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?
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?
ABRAMS: 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...
MONTAGNE: ...has suggested that that's just what he's trying to get.
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?
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.
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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