From CNN's Parker Spitzer, author Naomi Wolf debated CNN's legal analyst Jeffrey Toobin on the WikiLeaks release and whether Jullian Assange ought to be treated any differently than the news outlets that published the information his site passed on
December 15, 2010

From CNN's Parker Spitzer, author Naomi Wolf debated CNN's legal analyst Jeffrey Toobin on the WikiLeaks release and whether Jullian Assange ought to be treated any differently than the news outlets that published the information his site passed on to them. Jeffrey Toobin sadly did a whole lot of water carrying for the US government during this debate to the point where it made me wonder, as it did Klein, if he was willing to throw his own employer under the bus for his views. CNN was more than happy to get ratings from reporting on the leaks. It seems they're happy to make the profits from it with none of the risk after watching Toobin defend the network here.

SPITZER: Joining us in "The Arena" for more on what today's ruling means, Naomi Wolf, road scholar, author of "The End of America," and CNN senior legal analyst Jeffrey Toobin.

Thank you for joining us.

Look, Naomi, let me begin with you. You have been intensely critical of the Swedish government for even bringing the case. You're basically saying had he not been the individual who released these documents --


SPITZER: -- then --

WOLF: Absolutely.

SPITZER: This law would not have been brought to bear against him in this way.

WOLF: Exactly. Exactly.

SPITZER: And this is government from the U.S. to Sweden and Britain, basically saying we're going to shut you down.

WOLF: Exactly. That's right. I am saying that.

SPITZER: And you're saying that's wrong?

WOLF: Well, obviously, I can't say conclusively until the man has had his day in court.


WOLF: And the women, too, need to have their day in court.

SPITZER: Jeffrey --

WOLF: But I am saying it -- from 23 years of looking at how rape is treated, this is so anomalous that it sure --



SPITZER: You're a (INAUDIBLE), does that bother you?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: No, not a bit. I mean, you know, Sweden has the right to enforce their laws however they want.

WOLF: Selectively?

TOOBIN: The idea -- the idea that Sweden of all of a sudden has become a wing of the FBI or the American Republican Party is totally inconsistent.

WOLF: Just not -- that's so naive of you. Of course United States brings pressure to bear against governments like Britain which is a total lack --


SPITZER: And WikiLeaks are going to kill --

WOLF: Look at the Iraqi war.

TOOBIN: All right. With respect to the Iraq war, if the United States wants to charge Julian Assange, which they very develop may, and in my opinion they probably should, they could just charge him.

PARKER: OK. Let's --


TOOBIN: Why do they need Sweden to arrest him? Why do they need to arrest him for -- have Sweden arrest him for rape? I mean it's just -- it's so circuitous. Sweden seems to be enforcing its own laws and more power to them.

PARKER: Let me ask you, where are we in the investigation? It's been a week since Eric Holder held a press conference? What -- where is he on that investigation? What does he know?

TOOBIN: I have no idea, but certainly it is well under way. I mean there was one report that a grand jury has been empanelled in the eastern district of Virginia, which would make a certain amount of sense in this case, but look. We have suffered a massive disclosure of classified information. This is a crime.

WOLF: Julian Assange is no -- he is the publisher, we talked about this as well. As is "The New York Times", as is "The Guardian," as are we here and discussing it. And as I said before, I'm going to say it again, it's a very dark day because what they're looking at is the Espionage Act. And you and I know that that was used to close down dissent, close down criticism for a decade.

And if they're going to go after WikiLeaks for publishing information, then by your reasoning they have to go after "The New York Times" and CNN --

TOOBIN: That's not true.

WOLF: -- and FOX News.

TOOBIN: It depends --

WOLF: And every news outlet that published it --


TOOBIN: It depends what role these so called news outlets had in getting the classified information in the first place.

WOLF: You want to investigate the "New York Times"?

TOOBIN: I want to investigate Julian Assange.

WOLF: You want to investigate CNN? You want to investigate your employer?

TOOBIN: I sure want to -- absolutely.

WOLF: Who have also reported on --

TOOBIN: Wait a second, no, no. I'm talking about getting the information from the person who took it. That's what's significant.

WOLF: He's a publisher.

TOOBIN: I don't think that -- he is the co-conspirator.


WOLF: Then why is it "The New York Times" and CNN and FOX News --

SPITZER: Let's move away from Assange, because I'm going to say something that I think puts Assange off to the sidelines for a moment. He may not matter. By next week, there will be other outlets, other on-the-line entities that have replicated WikiLeaks. There's one being created right now by somebody who --

PARKER: Open Leaks.

SPITZER: Open Leaks is the name. They are saying, you know what? There's nothing that Julian Assange did that is so unique. He was the recipient to buy -- Naomi's view. WOLF: Exactly.

SPITZER: We, Open Leaks is saying, are going to be here to receive leaks from anybody. We will not publish it. We will then talk to media outlets to see if they want it. So is this sort of the way Napster was with music? A whole new technology has been created.

And is it the case, Jeffrey, that you were -- you know, involved in top security clearance documents years back as a prosecutor. Is it going to be almost impossible to maintain that security around those documents?

TOOBIN: No, it's not going to be impossible because ultimately someone has to make the decision to take classified information like Manning is accused of doing it, putting people's lives in jeopardy and fortunately I don't think the United States government is crawling with people who want to do that.

But if there are people who want to do that and if there are people who want to assist them, they should all go to prison because it's illegal and it's wrong and it places people's lives in danger.

PARKER: That's what I want to --


PARKER: Let me ask you a direct question. One sec, Naomi, please. If you are going -- if you can establish that someone died as a direct result of Assange's work, is that not equivalent to yelling fire in a theater?

TOOBIN: I -- I'm not -- no, it's not. I mean, I -- the chain of causation is very hard to pin down here. But certainly, the -- you know, look, I believe the government overclassifies a lot. But we cannot have the Julian Assanges of the world as the arbiter of what should be public and what shouldn't.

It's just not right. And you know, the idea that this guy is a whistleblower, what did he -- what did he disclose here?


WOLF: And you object to the publication of Pentagon papers? I mean what is the difference between WikiLeaks --

PARKER: Those are not morally equivalent.


TOOBIN: You know what? I think there's a huge --

WOLF: What's the difference?

TOOBIN: There is a huge moral difference. The moral difference is that was a situation where you had Daniel Ellsworth on his own without any involvement from anyone else go -- WOLF: "The New York Times."

TOOBIN: No, no. Wait a second. He -- the "New York Times" didn't tell him to take the documents.

WOLF: No. But they published it.

TOOBIN: Once they took the documents, they gave it to the "New York Times."

WOLF: And they published it.

TOOBIN: It's very different.

WOLF: They talked to their lawyers and then published it.

TOOBIN: That's right. That's very different. It's very different from Assange encouraging, working with people to get --

WOLF: "The New York Times" encourages people to bring them newsworthy material all the time.

TOOBIN: No, no. This is not newsworthy.


WOLF: If you -- I don't get it. This is a hypothetical. You're somehow soliciting -- come give me your leaked documents. If you're WikiLeaks, and not soliciting. If you're the "New York Times" or the "Wall Street Journal" --

TOOBIN: Absolutely.

WOLF: -- that used to do real reporting?

TOOBIN: I think that's a big difference.

WOLF: People who run everything need to know that there might be whistleblowers and that does keep their actions within parameters.

SPITZER: This is not going to be resolved right now at this table. We will continue this. I promise.

Jeff, Naomi, thank you for being with us.

Can you help us out?

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