Digby has more on this exchange on CNN's Parker Spitzer and Jeffrey Toobin tying himself in knots trying to defend Attorney General Eric Holder's statement that the US government might use the Espionage Act to go after Julian Assange and WikiLeaks,
December 25, 2010

Digby has more on this exchange on CNN's Parker Spitzer and Jeffrey Toobin tying himself in knots trying to defend Attorney General Eric Holder's statement that the US government might use the Espionage Act to go after Julian Assange and WikiLeaks, so go read her whole post over at Hullabaloo. I just wanted to highlight something Naomi Wolf said during that discussion on how dangerous it is if the government does end up taking that route.

SPITZER: And back to Woodward, where does Woodward fit in to this?

SHIRKY: So I think that Woodward is not a criminal for publishing leaked documents but I also think that Assange is not a criminal for publishing leaked documents. However, I also, also think that if I'm wrong about that, that the way in which I would be wrong is going through the court system. Not through an extra legal running of WikiLeaks off the network.

The damage to me -- Jeffrey to your earlier point about the slippery slope, the non-slippery slope argument is the State Department has currently committed itself to making it very difficult for autocratic governments to force information off the Internet. And we're suddenly providing not just a recipe but a rationale that's making everyone from Lubchenko (ph) to Kim Jong-il laugh.

TOOBIN: But see, you know, again, this is a slippery slope argument.


TOOBIN: It is, it is. Because the fact that someone takes United States government documents, secret, no foreign distribution, and says that shouldn't be on the Internet. To say that North Korea shouldn't have a free press, to say that Russia shouldn't allow journalists to -- I mean, I think it is easy to draw a distinction between the two.

WOLF: Jeff, can I talk about the Espionage Act because that's really what's at stake now that they've invoked it. I predicted in my book "The End of America" that sooner or later, journalists would be targeted with the Espionage Act in an effort to close down free speech and free criticism of government. And we have a precedent for that. In 1917, the Espionage Act was invoked to go after people like us who are criticizing the first World War. Publishers, educators, editors. Wait, and people were put in prison. They were beaten. One guy got a 10-year sentence for reading the First Amendment. And that intimidation effectively closed down dissent for a decade in the United States of America.

The Espionage Act has a very dark and dirty history. And when you start to use the Espionage Act, to criminalize what I'm sure you've handled classified documents in your time as a serious journalist, you know perfectly well that every serious journalist has seen or heard about classified information and repeated it. When you start to use the Espionage Act to say reporting is treachery, reporting is spying, it's espionage, you criminalize journalism. And that's the history that our country has shown.

TOOBIN: I recognize there is that history. And I'm familiar with the red scare, too. America is different now.

WOLF: Oh, it's worse in some ways.

TOOBIN: Well, I would disagree.

SPITZER: I want to ask Jeff a question though, because I want to come back to this Woodward distinction. You would agree with Clay and Naomi, I think, that Julian Assange would be precisely Bob Woodward if he had been the recipient of these documents, is that correct?

TOOBIN: I'd have to know a lot more.

SPITZER: But it might be the case.

TOOBIN: It well might be the case.

SPITZER: OK. So you're sort of clear articulation of the beginning that he clearly violated something maybe not so much.

TOOBIN: I'm not sure. Certainly the attorney general of the United States seems to think criminal -- criminal activity was involved here. But I think the wholesale taking of enormous quantities of classified information and putting it on the Internet, even if you don't put all 250,000 documents on, I think that is a meaningful distinction from what Bob Woodward does.

SPITZER: It seems to me that Bob Woodward arguably did something much more egregious. He took real-time decisions about why we were going to war in Afghanistan, the discussions are rationale, where we would go spoke to the most senior political and military officials in the nation and blasted that out in the book. A clear distinction.

TOOBIN: Well, again, there is a distinction in part because the president of the United States and the vice president are allowed to declassify anything they want at any time for any reason. So if the president declassified -- SPITZER: A lot of people who didn't have that power were sourced in that book. Seemed to be speaking in clear violation. They, in fact, should be subject to criminal investigations.

TOOBIN: I always wondered why -- why Woodward gets away with it. It's an interesting question.


PARKER: It's a fascinating conversation. I have mostly listened as a non-lawyer to these arguments. And I never want to make a case against due process because that seems always the right thing to do.

WOLF: Thank you.

PARKER: And yet I also want to say the government should be able to shut down people who are giving away secrets that are going to cause people to lose their lives and put in, you know, and cause our own people abroad not to be able to do their work in safety.

All right then. Naomi Wolf, Clay Shirky and Jeffrey Toobin, fabulous conversation. Thank you.

SHIRKY: Thanks so much.

PARKER: And you, too, Eliot Spitzer. We'll be right back.

It's pretty pathetic that CNN's supposed "legal analyist" apparently doesn't have any grasp of history with his as Digby described it, authoritarian views he relayed here. I used to think that Toobin was a little more of a straight shooter than some of the other hacks over at CNN, but not any more after watching this interview.

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