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 (INAUDIBLE) of government. And we have a precedent for that. In 1917, the Espionage Act was invoked to go after people like us who were 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 your 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.
—Naomi Wolf, Jeff Toobin, and Eliot Spitzer, talking on CNN's Parker Spitzer December 23, 2010. (transcript)
(Sidebar: Toobin was either indulging in a little hyperbole, or he was under the impression that all the cables were released unredacted. Not that it makes a huge difference, but this is not what happened. Wikileaks has been working with five newspapers, including the New York Times, to redact the cables before they are released publicly. As of January 10, 2011, Wikileaks has released only 2,028 of the 251,287 cables. They have been releasing a few each day.)
When Dianne Feinstein called for Julian Assange's prosecution under the Espionage Act, she wrote:
Mr. Assange claims to be a journalist and would no doubt rely on the First Amendment to defend his actions. But he is no journalist: He is an agitator intent on damaging our government, whose policies he happens to disagree with, regardless of who gets hurt.
But what exactly is Assange or Wikileaks doing that investigative journalists do not do? Cultivating contacts with privileged access? Obtaining classified documents? Reading them? Publishing them? Refusing to reveal sources? Pushing an agenda? Trying to make a difference? Those are all things journalists do. It is arguably impossible to do the job right without doing those things.
Why does Bob Woodward get away with it?