Transcript repurposed from The Take Away Show With John Hockenberry and Celeste Headlee, December 6, 2010
“How the US might prosecute Julian Assange”
The show is a co-production of WNYC Radio and Public Radio International, in collaboration with The BBC World Service, New York Times Radio and WGBH Boston.
Host: British police say Julian Assange can be arrested at any time on a Swedish warrant. The best information that we have is that he is in the UK somewhere. The attorney general of his home country, Australia, called his actions “incredibly irresponsible and reprehensible.” But you can’t try somebody for being reprehensible–or can you?
Joining us now is David B. Rivkin, he’s a constitutional lawyer who served in the Justice Department and the White House Counsel’s office. Good morning, David.
David B. Rivkin: Good morning, good to be with you.
Host: To be clear, the Swedish warrant is not for espionage it’s for sexual assault. But let’s go to what the attorney general of Australia is talking about: They’ve said if he ends up being found responsible for endangering people through his releases of secret documents, we don’t want him back in Australia. But no one has charged him with anything.
Rivkin: Well, I think its unfortunate; I’m not an expert on Australian law. But he clearly can and should be charged under the 1917 espionage act. It’s an old statute, broadly worded, it has some problems, not many successful prosecutions under it. The last one really was in 1985 involving a fellow by the name of Morrison, a person who gave or sold pics of a Soviet aircraft carrier to Janes [Defence Weekly], which is a British publication.
But, what’s unique about this situation is that there really are no first amendment problems with prosecuting Mr. Assange. His behavior is totally different from that of a journalist. To clarify, we’re only talking about prosecuting him, not any newspapers that use material. Think about what he’s done. He’s not written any story or stories about the information he leaked. He has not analyzed it. I would bet he has not even read it.
His modus operandi has been to take everything he gets his hands on, all the classified documents, hundreds of thousands of pages, and dump them in a public domain. That behavior is unique and distinctive from that of any newspaper, any magazine, any TV station or radio station. So you can go after him under the espionage act and demonstrate to the courts that there is a limiting factor here that would never touch the media.
Host PLAYS THE CLIPS of Julian Assange interview from last summer:
Assange: “It is the role of good journalism to take on powerful abuses and when powerful abuses are taken on there’s always a bad reaction. We see that controversy and we believe it’s a good thing to engage in … The nearest analog is the Pentagon Papers.”
Host: Clearly he feels he is fulfilling a journalistic role. I wanna go to what he says about comparing what he does to the Pentagon Papers. Is that a fair comparison?
Rivkin: No, as I said, the Pentagon Papers involved publication of a fairly sizable quantity of classified information relating to certain aspects of the Vietnam War. Nothing comparable to this in quantity. But more fundamentally, that was done in the context of a specific set of stories by a number of different newspapers about a particular issue. Mr. Assange’s modus operandi is to get every piece of classified information he has .. it could be about scientific secrets, our space program, it can be about Iraq, Iran, diplomatic negotiations on arms control, and release them. You tell me: that is not the behavior of any journalist we can think about.
One final interesting point, his latest gambit is engaged in what really is an act of blackmail. He is basically saying to the United States in particular that if you prosecute me, I’m going to release the so-called “doomsday file” that contains some additional secrets.
Ask yourself the following question: Can you imagine any journalist or any media organization that would in effect tell the government if you go after us, we will release a bunch of other things? That behavior alone categorizes this person as a garden variety criminal, a blackmailer, and not a journalist.
Host: Well does it matter if the documents he is releasing were secret as opposed to classified?
Rivkin: Well, a lot of those documents are secret, a lot are top secret, a lot are confidential, but these are details. The most important point to get out here, it is possible to go after this individual without endangering any First Amendment values. Think about it: somebody who goes in and defaces a government building, say throws paint at the Pentagon, or destroys a piece of government property, can be prosecuted without any problems-
Host: But wait a minute, there’s where it begins to fall apart. You’re suggesting there is destruction here. Assange says the public has an interest in knowing the secret works of government as a matter of principle. Don’t the courts have to rule one way or another? Why does the government simply get its privilege to keep secrets without challenge?
Rivkin: The point I am trying to make is that the only reason leaks of classified information are not as easy to prosecute as my other examples is precisely because of First Amendment values. Mr. Assange tries to wrap himself in First Amendment values. He is not a journalist. It is possible to draw a clear line between prosecuting him … Again to emphasize, any newspaper, any magazine, TV, radio station, using this information in course of normal business would not be subject to prosecution precisely because they are the ones protecting First Amendment values. Mr. Assange is delusional if he believes in that. But most likely it’s a cynical ploy.
Host: What if a blogger does it? They’re a journalist.
Rivkin: Well, again, fundamental difference. Incidentally, I’m not at all espousing a traditional journalist writing for the New York Times versus a blogger blogging out of his mother’s basement. A blogger analyzes things he posts, a blogger writes stories, they may not be eloquently written, but a blogger is performing essentially a journalistic function. Back to what I said, the latest behavior really typecast him perfectly. Can you think of any organization that blackmails governments publicly, saying if you try to prosecute me, I will leak some more. I rest my case.
Host: So why haven’t they charged him yet?
Rivkin: I think its unfortunate that the current administration doesn’t seem to have gotten its act together. What I’m talking about is not rocket science. This is something they should’ve considered months ago, when he had his first dump of documents. I hope they are going to move in that direction.
By the way, as soon as he is charged, we would be able to go after his accounts, his assets, we would be able to pose a credible threat of prosecution to people who are helping him, who are giving him aid and comfort now. It needs to be done aggressively.