Abrams, who worked on the Pentagon Papers case, talks about how Julian Assange’s exposés about U.S. policy are different from Daniel Ellsberg’s revelations about Vietnam.

Question: Is the Wikileaks document release protected by the First Amendment?

Floyd Abrams: Well, I don’t know of anything in what Wikileaks has published which violates any law.  There’s been some suggestion in some of the press that this is treason.  It’s not treason for one thing because the people that run it aren’t even American.  It’s not spying.  It’s not the publication, so it seems, of the sort of material which we’ve ever made illegal.  That doesn’t mean that one has to agree that Wikileaks should have done this, served the public by doing it, or that we even know what’s in the material.

One of my concerns for example, it’s non-legal concern, but one of my concerns is that when you have 92,000 documents that it’s more likely than not that—when all of them are classified by the way, although at a relatively modest level—that there may well be some material which could be genuinely harmful to national security.  I don’t get any confidence from the people at Wikileaks that, that is much on their mind at all. But at this point at least, I don’t see any legal impediment to them publishing what they did and the only legal problems I can see them running into right now in this country relate either to a.), how did they get the information and b.), are they going to be asked by some Grand Jury to reveal who their source was for the information? Of course, to do either they'd have to be here.  They'd have to be in the U.S. They'd have to be transported here in some way, and that could be very difficult.

I find it really disturbing that they really, on the one hand, have this great passion for revelation of secrets which is their raison d'etre, that’s why they exist, that’s what they believe in but I find it disturbing that they don’t really seem to accept the proposition that there are some materials which, if published, can do harm.  I mean, remember when the New York Times published the Pentagon Papers in 1971 which was a time of grave turmoil, the war in Vietnam was on. These papers disclosed a historical record of duplicity by the U.S. government and becoming involved in Vietnamese conflict. That the person who gave it to them, Daniel Ellsberg did not give every volume to the times.  He withheld three that he thought were especially sensitive since they dealt with negotiations to end the war.

And when the Times published, they didn’t publish everything he gave them because they thought publication of some might do harm to national security.  I would feel a lot better of Wikileaks if I thought that they took such matters seriously into consideration.  

Question: Is it treason?

Floyd Abrams:  I don’t think their could be a treason prosecution but anyone in the government who made this material available could be charged with one or another crime.  They certainly violated some law with respect to the distribution of property not belonging to them... in fact there was one stolen property for example—stolen property claim, criminal claim—brought against someone in rather similar circumstances.  There are other charges as well which could be brought, and it wouldn’t shock me actually for the government to follow this up very seriously. Because even though outsiders don’t really know yet how greviously any element of national security has been breached it seems to me that, that may well be the case. But that in any event, you know, a person who works for the U.S. Government that releases 92,000 classified documents is necessarily at risk of criminal prosecution.

Recorded on July 29, 2010
Interviewed by Max Miller