Chilling the First Amendment

DB: I guess you could say that it raises some challenges and some real concerns about where press freedom is going, and what we all have the right to do now who consider ourselves journalists.

JG: Yes, I think journalists should be very, very concerned. He, Obama, has also threatened to prosecute Julian Assange. Now Julian Assange ran the website WikiLeaks. And he, Julian Assange, is in England. He's holed up in the Ecuadorian embassy. He is scared to come back to the United States because he thinks that Obama will indict him. Now, Julian Assange may not be an attractive figure to your listeners, but he is someone who published leaks, that's what Risen did, he published them on his web site and he should be able to do that under the First Amendment, without fear of prosecution. But Obama seems to be going forward with that prosecution. The list goes on and on. But I just do not think that Obama is very good on press freedom.

DB: We're speaking with James Goodale. He's got a new book, it's called Fighting for the Press. He was the chief counsel to the New York Times when its editors published the Pentagon Papers in 1971. You know, in 1971, and for a long time after, I know as a daily journalist, I would die for the kinds of documentation that was provided by Julian Assange.

I mean this was what journalists look for, to document, instead of just somebody just saying here or there, you get the document. You can see ... what the policy was ... It almost seems like journalists have ... turned on themselves, and feel like it's their job to prosecute the whistle blowers ... and the journalists like Glenn Grenwald who give them a platform. Where are we here?

JB: Well, I think that there's a couple of points here that you made that I want to emphasize. And number one, I've talked about journalists who publish information. But we gotta realize that in many cases that information is what we call whistleblower information. It's information that a particular person feels compelled to bring to the attention of the United States public. And the journalist believes that carrying that information to the public is carrying out his obligations as a journalist. That's the first point you made, which I want to emphasize.

The second point is that the journalistic community does not seem to be as enthusiastic as I am about supporting these whistleblowers. Now, in the case of Glenn Greenwald, he is a blogger. He's pretty much the same as Julian Assange. He's got his own website, so to speak. He has published the information about the NSA program, which has been in the headlines over the last several weeks.

But I think your point is, and I would agree with it, not everybody is rushing to support Glenn Greenwald. Some people have said he should be prosecuted himself. But Glenn Greenwald is just like you. You are interviewing me, Glenn Greenwald interviewed the person who leaked the information about the NSA. And I really think the journalistic community should support the Glenn Greenwalds of the world and tell President Obama that he's not going to be able to scare journalists.

DB: How would you ... somebody who represented the New York Times in the Pentagon Papers in '71, how would you compare WikiLeaks ... what Assange has done to what happened with the Pentagon Papers? Is there a parallel there?

JG: Well, I think that there is a parallel. ... They are the two great leaks in American history. The Pentagon Papers, to refresh the recollection of your audience, was a 47-volume study of the history of the Vietnam War. And Daniel Ellsberg leaked all the volumes to the New York Timers. The New York Times didn't publish them all, but part of it.

In the case of Julian Assange, Private First Class Manning, who had access to classified information, leaked tons and tons of material to Assange. Part of that material was published first by the New York Times, and then later it was published by Assange. So, we're looking at two great leaks, by two well known leakers, one better known than the other, Ellsberg the great leaker, leakee, the New York Times, and Private Manning not as well known as Ellsberg. But he's a leaker, and he leaked it to Assange. So Assange is the same as the New York Times, so forth, and so on. So, generally speaking, they are identical.

DB: Amazing. Well, we don't have a ton of time left, but I guess if I could appoint you as a special advisor to the President for legal affairs what would you want to tell him about his policies that have to do with going after [leakers]. ... Bradley Manning should spend the rest of his life in jail and some people around Washington feel he should be executed as a traitor? What would your advice be to the President?

JG: My advice to President Obama is very simple. Dial it back. Manning is a leaker, he's pleaded guilty to 20 years, he should go away for 20 years, but he doesn't need to go away for life. So tell your prosecutors to dial it back. And in the case with James Risen, Mr. President, you do not want to put a New York Times reporter in jail, dial it back.

DB: This is a speculative question. You're an attorney, but what do you think the New York Times would do if somebody put an equivalent version of the Pentagon Papers in their editor's hands today? Would they have the courage? Would they be risking their freedom, being closed down? What do you think? What would you tell them?

JG: Well, I think that the courage is out there. I mean, Risen is a New York Times reporter after all. He courageously went forward with the leak that he published. I think, to answer your question, the New York Times would go forward with the publication of its leak. But I think what's changed over the intervening time between the first publication of the Pentagon Papers and today, is that the screw has been tightened on the press. And that the risks to reporters particularly has increased. So, to the extent that the information that you talked about came from a source that had to be protected, I think reporters are going to be a lot more scared today than they were X years ago, particularly after the Risen case, and decision, which we talked about earlier.

DB: So you're expecting the big chill? You're expecting a big chill. You think this is going to chill the willingness of some reporters to ... if you have three kids...

JG: Yeah, I usually stay away from the word chill, I don't like to use it loosely. But I think it's quite clear that what all of these actions have done is that the reporters who would be Risens, who would be getting leaks of information which the public should know about, they're not that eager to risk their freedom and, secondly, I do not think the reporters that used to go that game, are going into it. So I will use the word chill to sum up that point to say that we're going to get less and less reporting about things we should know about because reporters are going to be scared.