 The episode 12 of CN Live, the Espionage Act and Julian Assange. I'm Joe Laurier, the editor-in-chief of Consortium News. WikiLeaks this week said that a judgment from the High Court in London in the US appeal seeking to overturn an order not to extradite the imprisoned WikiLeaks publisher Julian Assange is imminent. The court has several options. It can rule in favor of the US or of Assange. It can send the case back to magistrates court where the two judges could fail to agree and a new panel would re-hear the appeal. On this show, we will look at the various possible outcomes of the High Court's decision, which could come at any time. If Assange is ultimately sent to the United States, he will face a charge of conspiracy to commit computer intrusion, as well as 17 counts under the 1917 US Espionage Act. Though several US administrations in the past, FDR in 1942, Nixon in 1971 and Obama in 2011, had all come close to punishing journalists for revealing defense information, they all pulled back until Assange. They were restrained because of a conflict with the First Amendment, which prohibits Congress from passing any law, including the Espionage Act that abridges press freedom. Until that legal conflict is resolved, the legal conflict in the Espionage Act, until that is overturned, parts of the Espionage Act, sorry, let me start again, until the legal conflict is resolved in court, resulting in parts of the Espionage Act being found unconstitutional, the language of the Act threatening press freedom remains. Boasted by 1950 amendments to the Act, Donald Trump administration crossed the red line to arrest a journalist for publishing defense information for the first time. A 1961 amendment made it possible to indict a non-US citizen acting outside US territory. The Trump administration's first indictment of a publisher has opened an alarming precedent for the future of journalism. But threats to press freedom are an integral part of US history, is really nothing new. Assange's arrest and indictment comes within a long line of government repression of a free press, first by the British against American colonists, and then by the US government, which based the Espionage Act on the British Official Secrets Act. The history of these two acts show that they have borrowed from each other, and now Britain is considering a new Official Secrets Act that would bring it even more in line with the Espionage Act, with rumors that the UK may rename their Act after the American one. Many informed people, including Pentagon Papers whistleblower Dan Ellsberg says that the US does not have an Official Secrets Act because of the First Amendment. While it's true that Britain used the Official Secrets Act to charge journalists for possessing and disseminating classified material, for instance reporters and editors at the Sunday Telegraph in 1971, and two reporters at Time Out in 1978, while the US had never done that, all of that changed with the indictment of Assange. The Espionage Act, especially since the 1950 McCarran Act amendments, has always carried language making it possible to charge journalists with possession and dissemination of defense information. The most significant 1950 change to the Espionage Act was to remove intent and make mere retention of defense information illegal. While FDR Nixon and Obama came close to using the Act for this purpose, it never happened until Trump indicted Assange. I'm going to argue today that that in effect made the Espionage Act equal with the Official Secrets Act. So I've laid out a lot of detailed information here and we're going to get into it now with our two guests. They will first discuss the High Court's options and then the parallel history of the Espionage and Official Secrets Act. First guest is James Goodell, who was the New York Times Council during the Pentagon Papers case. James has been called, quote, the father of reporters' privilege. He disagreed with the Times' outside counsel not to publish the papers and was part of convincing the Times, if not he did it on his own. I want to ask James that. He convinced the Times to publish the Pentagon Papers and he was vindicated by the Supreme Court decision in the case against prior restraint. We're also joined by consortium news legal analyst Alexander McCourst, who worked 12 years at the Royal Courts of Justice in London, which houses the High Court. He is also the editor of the Doran and the show is produced by Kathy Bogan. So Alexander and James, welcome to CN Live. Pleasure. Alexander, let me start with you. We're waiting for the decision on the High Court. As I said, it could come today or next week, but the weak league says imminent. Now, Lord Chief Justice Ian Burnett and Lord Justice Timothy Holroyd, the two judges on the court, they must essentially decide if Assange is too ill and too prone to suicide to be extradited or whether they believe U.S. promises that Assange will not be put into extreme isolation in the U.S. prison. From what you know of the case, Alexander, in what way could the High Court side with the United States? Well, they could side with the United States by basically rejecting the decision of the lower court judge, District Judge Baritza, that Julian Assange would be at a serious risk if he were extradited to the United States. They could decide that the assurances that the United States is giving are valid assurances that Baritza should have given the United States an opportunity to listen to those assurances or to make those assurances to the court. And they could also, they would have to, I think, find a way of getting around the evidence, the expert evidence of the expert who said that Assange would be at risk if he went to the United States. And there's an attempt now by the attorneys of the United States to try to challenge that expert to suggest that Baritza placed undue reliance upon what he said. So they would have to do that. Now, to my mind, that would be unorthodox. I think that going behind the judge's assessment of the expert would be extremely unusual indeed, unusual to the point of being practically, well, not perhaps unprecedented, but really remarkable. And one would only expect that to happen if a judge were clearly and unambiguously wrong to rely on that expert. And I don't see how that could be the case. And on the assurances, well, the US authorities have never given a coherent explanation of why those assurances weren't given previously. And besides, there's obviously a big question about whether those assurances carry any weight anyway. So I would have thought if you follow conventional, orthodox legal approach, these arguments should not be entertained by the appeal court. However, the appeal court in its wisdom has decided to hear those arguments. It's decided to grant permission to the United States to present those sorts of arguments going to some extent against an earlier decision of a high court judge who felt that at least some of those arguments specifically on the expert were not really entertainable. The high court decided nonetheless to hear those arguments. Given that it's decided to hear those arguments, bad arguments as they are, that does make me concerned that the very fact that they've decided to hear those arguments, given the high politics involved in this case, might suggest that they're prepared to say that those assurances should be heeded and perhaps that the expert should not have been relied on. Unconventional, though I would have thought that is. I'm going to just add one very quick comment. The fact that the judgment is imminent suggests that the decision has been made rapidly. It suggests to me that the two judges are in agreement. So we will probably have a clear decision one way or the other, which we'll have to wait and see what it is. So the possibility of a split cause, it seems to me, is looking less likely. Right. And of course, the lawyers on both sides will get this decision before it's posted publicly, correct? Exactly. Do they have an opportunity to challenge any factual things, not to judge? Yes, they do. Yes, they do. So if there's obvious errors of fact or numerous errors of fact, they can sift through the judgment, they can point it out to the judges and invite the judges to correct those judgments. What they can't do in that form is challenge the overall decision and they can't challenge the judgment and points of law. But if the judges have got particular facts wrong, then they can ask the court to correct those facts and normally the court would agree. Of course, if the court has got facts fundamentally wrong, well, then it might be that they'll go away and come back and think about it again. But I've never known a situation like that to happen. Usually, it's corrections on factual points of detail. Right. Okay. A couple more questions for you before we go to James on this. You pointed out to me, I think privately, that you were surprised, maybe pleasantly surprised, that Assange's lawyers were able to bring up this Yahoo! report that the CIA had seriously considered assassinating him or poisoning Julian Assange in the Ecuador embassy. What do you think happened there and what significance could this possibly play in their decision? Right. I mean, I should say it's the only thing. It's the one thing about this that makes me moderately hopeful. I want to stress very moderately hopeful because, first of all, it's a newspaper story and, you know, it's not always easy to persuade the court, the high court to accept a newspaper story. It's not been confirmed by anybody within the United States government. And, nonetheless, the court decided to hear that. And, of course, they seem to have decided to accept that evidence despite the fact that it is, after all, evidence that's happened since the judge made a ruling and an appeal is supposed to be looking at what the judge's reasons for making that decision were, not at looking at evidence that comes to light after the judge made that decision. So the fact that the high court decided to hear this evidence, I think it's interesting and I think it's moderately hopeful because logically, if the high court decides to hear that evidence and really takes that evidence on board, then they will have to say to themselves, well, this is a person, this is an individual, Julian Assange, who agencies of the United States government, the CIA, were seriously considering kidnapping. They were prepared even to kill him in some particular circumstances, you know, shootouts in London and all that sort of thing. If that's really the case, given all the other things that have happened in the case, the fact that he was under round the clock surveillance and we all know about, you know, the role that this private company played in all of that, the Spanish company, well, can you really extradite someone to a country whose law enforcement and intelligence agencies acted in that way against him? And again, if you're applying conventional orthodox extradition law, the short answer is you can't. Not only should you not do so, you can't do so. Anyway, it was very interesting that the court decided to hear that evidence and that the prosecution, the lawyers who were representing the United States, didn't seem to be saying anything in response to it. So quite what's going to happen about all of that, I'm not sure. But it does make me moderately hopeful. But as was actually said during the hearing itself by one of the defense lawyers, nothing that's happened in this case has been normal. And it's not normal in some ways that this appeal in this way should be heard at all. And it's not necessarily, we can't take assurance that because they heard this evidence, they get to act on it in any form. James Lewis, the American, the prosecutor for the U.S., during the September 2020 hearing, efficient hearing called, talk about assassination of the Sange palpable nonsense. He said absolutely nothing after the court heard about the Yahu allegations. I want to also point out that there's a second medical expert out of Michael Professor Koppelman, was the one that is being challenged, even though he's such an expert that James Lewis himself called on him once to urgently to help him in an extradition case. So, but there's also Professor Dealey, who is mentioned in the Baraita judgment that she also relied on. He never seems to get mentioned. He also has strongly supported the view that a Sange is too ill to be extradited, too suicidal. Last question, Felizanum, before I move on to James. Does it matter that Vanessa Baraita, who was the district judge who issued the order not to extradite a Sange, does it matter that she's no longer in the magistrates court, that she's been promoted to the circuit court in case, in the event that the high court judges decide to send this case back to the magistrates court with the instructions to follow the law? A, would she have gotten it automatically if she was still on the bench? Yeah. Or does it matter that she's not there anymore? Well, I mean, again, conventionally, it would have gone back to the same judge. But of course, she might not be there. I mean, it's not impossible to ask a judge who's been promoted to come back. Really? To finish. It's happened. I've seen it happen. To come back and complete a case, especially a case like this. I'm not, by the way, saying that is what's going to happen. As I said, nothing, nothing has been normal. But I would have thought that the fact that she's not there would make them perhaps a little uneasy about starting with another judge back in the same court. And it might influence them. And, you know, they've got very wide discretion about what they should do. It might influence them to say to themselves, well, logically, the original lower court judge is no longer in that particular lower court. It's asking and expecting all too much to have to come back. We can't realistically ask somebody else to just step in and take over and, you know, listen to all of these arguments that can be done. But logically, perhaps we shouldn't be doing all of that. So perhaps the best way, the most proper way, the most sensible way, would be for us to deal with this whole situation ourselves. We have discretion to do that. We can make the decisions. And again, the fact that we've got a rapid judgment, a judgment that, as I said, looks like it's been decided quickly, a judgment would suggest strongly that the two judges are in agreement. That leans me to think that we're going to have a decisive and final judgment, at least as far as the high court is concerned. Right. And can I just say, from Assange's point of view, I think that would be a good thing, better to have it done now, even if it's against him, because then he can move on to the Supreme Court than to have a whole new set of litigation in the, in the Westminster Magistrate School that could prolong this thing for, well, who knows how many moments and extend this agony for him even further. Yeah, I would have thought the Americas would be happy that Barrett is no longer there. So another judge could give a different judgment. James, let me go on to you. Thank you for waiting. What everything Alexander's been saying here, particularly this point that there's nothing normal in this case, leads one to believe that this is not so much of a legal matter, but a political one. How do you see the case in those terms? Oh, I think all these cases have never been that many, but Pentagon Papers case and this one are not normal cases. And if you try to think it through normally or litigate it the way you would professionally, you're probably making a mistake. The cases are political. And if you make judgments that are purely legal and not political, you may, you may not win. That happened in our case, the political, the Pentagon Papers case. I'll come back to that when you find it convenient. But we're now talking about the appeal. And I think that anyone who has read the transcript, which I have, who has thought through the issues as we all have, will come to the conclusion that there's a perfectly reasonable basis for Judge Barrichet's opinion and that the challenges to it that which have been previously outlined are highly technical and in my view, not substantive. So therefore, in the ordinary course, because of the care that the judge took, the high standing of the witnesses that testified that Assange is not capable of being extradited, he should win. There's just a million ways he should win. But going back to your point, this is not a normal case. If you think from the very beginning, now this case began, let's say, the Swedish part of the case, you can see from the beginning that anytime Assange gets near a court or gets near the police, frankly, there's no other way to say it. He gets screwed. And that has been brought to our attention through this new book by Niels Meltzer, which he calls The Trial of Julian Assange. And I'm not going to bore you with the book, but just to say one thing about it. It has a very careful explanation of what happened to Assange in Sweden. And simply put, he was never accused of rape by the women with whom we had consensual sex. That was all made up by the prosecuting officials in Sweden. And it's typical of what's happened in this case. And therefore, I think that anytime that Assange gets before a judicial organization, defining that any way you want, he has got a huge mountain to climb. And if I may say so as a yank, I think that it is very hard for anyone who is maintaining a First Amendment defense to win anything in a British court. Excuse me for saying so to my colleague here on this broadcast. But I don't really think the Brits understand the First Amendment. They understand the Official Secrets Act. And here they have this guy without question has broken the Official Secrets Act and probably has no protection under the Human Rights Act. And he's trying to say, well, I have First Amendment defenses, don't send somebody back. That's the gravamen of his case. That's going to fall on deaf ears. And it slips over into the issue of Assange's sanity, which is to say, no matter what issue the court is thinking about, and they're thinking about non First Amendment issues presently about the decision, they're going to issue shortly. My humble opinion, deep down in the guts of this of these two justices, they're very unhappy with what Assange has done, because what Assange has done is illegal in the UK. And so I just don't think they're going to give him a break. I hope I'm wrong. But I think that, as has been previously explained, Assange has perfectly good arguments with respect to each part of the appeal that has been challenged. And with respect to each such issue, there are small technicalities that the court can seize on. And what I'm worried about is looking at what's happened to Assange thus far, that the court will seize upon these technicalities. Let me just talk about one of them, which I find really stupid, which involves the, what do we say, the patrimony of Mr. Assange, the fact that Mr. Assange fathered two children when he was in jail. One of the objections made by the government is that the court was not told, taught, told immediately at the time that the principal expert testified that Assange had two children. Although the court was told later, the fact that they wasn't told earlier impunes the credibility of the expert who said that Assange was not capable of being extradited. I mean, come on. The court, no, what difference does it make when the court do it? That sort of tip, I'm not going to go through each of the points, but each of the points there are, in my humble opinion, somewhat stupid. And they shouldn't be relied on. But get back to your point. This is not a normal case. And I would not be surprised if the, if the two judges in this case, in fact, picked up some small technicality and again, screwed us on. Alexander, do you want to respond to this? No, allegation that British courts and lawyers don't understand the first amendment? Well, it is self-evidently true in terms of this case, because if you remember at the lower court before Baritza, we had a situation where the British prosecutors were arguing first amendment, amendment points with the defences experts and clearly were out of their depth and unable to understand the first amendment points that the defendants experts were making. It was actually one of the, one of the strangest and most awkward parts of the whole case, of the whole trial. And then, of course, we got the final judgment from Baritza, in which she basically steamrolled over all the first amendment arguments, all the all the free speech arguments that Assange's defense team was making, the essentially substantive points. She didn't accept any, any one of them. It was entirely based on health issues. So, you know, in a sense, that particular battle has already been lost. The really substantive battle in legal terms, all we are now arguing about is these health issues and these, these questions of assurances, these technical points that James was talking about. Now, do the judges however feel that Assange is guilty of crimes in Britain under British law? Well, we don't have first amendment rights in Britain. We never have done. We've always had a much more restrictive approach to media rights than we have than in the United States. And we've got no constitutional protection for them for the media. And there's all those long 18th century cases, the arguments in the John Wilkes case, no British lawyer takes any note of those, any note of those at all today. So the only thing that you have is a public interest argument. It's now reinforced to some extent by arguments that derive from the article 10 of the of the European Convention on Human Rights, which to be very clear is nothing like a strong or as all embracing or as explicit or as clear as the first amendment. So we don't have that tradition. We have historically had a tradition of, you know, the public interest defense. But we're going to come to this discussion shortly because of course, that public interest defense, which has existed in Britain has been practically eroded out of existence. And now we're seeing an even more sustained attack against it from coming from the government with the new iterations of the well, espionage act, if you like, which is to come. And when, of course, the last official secrets that the new one that was introduced by Margaret Thatcher's government in the 1980s, when that when that came up to be tested in the House of Lords, which is of course the judge, the court that we had in those days, prior to the establishment of the British Supreme Court, it was very interesting to see that these House of Lords, the judges there simply ignored the entire public interest defense entirely. As far as they were concerned, it essentially no longer existed anymore. So I'm afraid I have to agree with James. I don't think that it's not just a case of British lawyers, British judges, no longer considering not able to understand First Amendment defences that, which arguably they never have done, but those protections the journalists used to have in Britain have been steadily and relentlessly eroded away. And the judges, the judiciary don't seem to be pushing back on that at all. They're not creating law, judge-based law, using, say, the Article 10 of the Human Rights Act to push back on that to any degree. And this particular case that we're looking at the moment, the case of Julian Assange, it's not being argued about those issues at all. Anyway, on the law, on the issues in this appeal, he should win. He should win on the points about the expert. He should win on the points about the assurances. He should win about the risk to his life, the fact that the US government was prepared to do extreme things against him. But given the political reality of this case, and it is a totally political case, one can't unfortunately make any assumption that the judges will follow the law on these points. James, do you want to respond or I have a question for you? Well, I just would add on not really a response to what was just said with respect to the First Amendment. We do recognize that this case is now on the capacity of Julian Assange to withstand extradition and in incarceration, in solitary confinement. That's what the case is about right now. I couldn't agree more. However, left behind, we must recognize is Judge Barrett's decision. Because that's about the only thing that we have left to look at. And when you read Judge Barrett's decision, as was noted a moment ago, she steamrollers the First Amendment, which is to say she doesn't apply it. Now, I found in my travels through the First Amendment that most lawyers don't understand how to apply the First Amendment. And let me just say it's a very simple, simple concept, but it led to the death of the firm that I once worked for, but they didn't know how to do it either, which is you take something like the espionage hacks or official secrets act, if there were one in the United States, you look at the language, you talked about the language, Joe, when you open up the show. Now, when you look at the language of the espionage act, you come through it. It doesn't say anything about the First Amendment. Hey, but guess what? No statute or any law passed by anybody ever says anything about the First Amendment. So what you've got to do, if you're a publishing type, which is important to be in addition to being a publishing lawyer, is you look at the language and you say, okay, it says you can't do this, you can't do that, you can't do this. And then you apply a First Amendment test. The one that is popularly known is clear and present danger. And you could say, well, would this language that says you can't retain documents, that's the one you made at the opening of the show, does that, no, you add when you read it, does that constitute a clear and present danger? You've got to add those words. Now, in fact, clear and present danger has been overruled, as you point out in your excellent series on the history of the espionage act. So you wouldn't use that choice of words, but you would have to be a smart First Amendment type to know what words you would add. Now, going back to where I started, Judge Barritzer doesn't know how to do that. She's like, the lawyers I used to work with, they didn't know how to do it. It's like most lawyers, they don't know how to do it, most Congress, she didn't know how to add the magic language of the First Amendment. And that is not just First Amendment, but it's the test that the First Amendment requires to her analysis. So therefore, when she goes through describing what Assange did, she says that he, oh, well, we can't look at Assange, he's not really a journalist. And if he is a journalist, he's got to be a responsible journalist. Well, that's very interesting, your honor, but it's got nothing to do with the First Amendment. You don't have to be responsible and protected under the First Amendment. And so she did what most lawyers do, which is she ignored the First Amendment. So we've got to realize that the concept of the First Amendment is not easy for judges and to go back where we started, particularly for the two judges that are going to decide this case. Well, James, just what I want to ask you, on the issue of prior restraint, there's no doubt there's a huge difference in Britain and in the US. The example of the spy catcher case in the Thatcher administration, they were able to block the publication beforehand of a book written by a former MI6 agent who was published in Australia. People know the story. That, of course, could not and did not happen in the US in the case that you were intimately involved in the Pentagon Papers. That's what the Supreme Court ruled. There could be no prior restraint in Britain, there can be. Assange's case is not a prior restraint case. Because the Supreme Court in the Pentagon Papers case said, oh, you can't stop publication before, but after publication of secrets, you can prosecute. They made that very clear. And Nixon impaled a grand jury in Boston. I want to ask you later about that, if you can give us some more insights into that. But he impaled a grand jury in Boston. And we saw the Obama administration tried to indict Assange in 2011. And Franklin Roosevelt tried to indict Chicago Tribune for publishing details of a Japanese, an attack by the Japanese that they may have been learned about it from the Tribune. They all failed. But you can prosecute for possession and dissemination of defense information, even if you're a journalist. There's no carve out in the espionage act. So until Assange was indicted in that regard, you could say that the First Amendment was stopping this from happening. But the language of the espionage act allows it. Now that he has, apart from prior restraint, I don't see any difference between the official secret act and the espionage act when it comes to possession and dissemination by a journalist. What do you say to that, James? Am I wrong? Well, I think that the language of the two is similar. But as I said, it doesn't make any difference what the language of the espionage act says. Because when you look at any particular aspect of it, any particular section, you have to then say to yourself, but does it meet the First Amendment? And the people who are drafting the language, don't put that in. You have to put it in as a constitutional lawyer. So you're absolutely right to say there is nothing that stops the prosecution of a journalist under the espionage act. But that's not the same as saying that the prosecution will be successful. The government can go ahead and prosecute. But it has to meet whatever task, let's say, because it's easy to understand, clear and present danger. It's got to prove that if you retain those documents, or if you publish them as espionage has, that you have caused huge danger to the United States by such publication. You have to add that to the statute, even though the statute doesn't say it. So the case that the government has against espionage is very simple in a sense. It says Assange has published the names of sources that gave the United States information. That is really, as far as the espionage act is concerned, that's all the case amounts to. You've got to show that your publication did something to these journalists. Now, I mean sources. Now, what is it that happened to these sources? Well, in fact, nothing happened to any of the sources that Assange used in his publication. So therefore, let's go back. You mean the informants, not the sources? Well, they call them sources, but it's a better word. Thank you. The informants, you go back and say, well, now if the publication was so dangerous, what happened to these informants? Nothing happened to them. So how can the government, possibly when it's case has got to show that they were put in danger, that they felt threatened, that they were killed. The government has not been able to show one tiny scratch to any of these informants and had had a chance to do this in an earlier case in which Manning was being prosecuted. He's the leaker, which the leaker was being prosecuted and it did not come up with one witness. So unless you can prove harm from the actions you take that are prohibited by the Espionage Act, unless you harm somebody during that, you lose because the First Amendment says you've got to show harm. Isn't it true that the I think the McCarran Act and then the 1989 Official Secrets Act after the Balgrano Affair and the Ponting case that intent was removed and public interest defense then was removed. So it becomes a pure case of whether you broke the law or not, not whether your motive is unimportant anymore. Isn't that what happened? That's I think there's an expert who, well I'll do the, I'll do the Espionage Act part, there's an expert who's written a really great piece on this, his name is Joe Lauria, in which he proved to me that the intent part of the statute, which we just talked about was taken out, which means it's easier for the government to prove its case if in fact the court thinks it's constitutional to remove intent. There's an issue, an issue there, but nonetheless the government's got to show harm, intent or no intent. So that's my answer on the Espionage Act. I will not speak on the Official Secrets Act. And in the Official Secrets Act it's exactly the same intent has essentially gone and 1989 act is of course the key and of course there was the judgement of the House of Lords, which I talked about the Shayla case in which the House of Lords again were presented with a public interest defence and intention defence by Shayla's lawyers. Shayla was an MI5 official who leaked classified information. He felt that it was in the public interest. The House of Lords could have pushed back on all sorts of grounds against the 1989 act. They made it absolutely clear in that case that public interest defence was essentially gone and the intention was no longer an issue. The big question for me is that what you see, there's two things that you see. Firstly, it's quite clear that the Official Secrets legislation in Britain and the Evolving Espionage Act legislation in the United States, they feed off each other. The authorities in each country look at what the other is doing and they copy, dare I say it, the worst practices of the other. So you have the British Empire in the 1889 act they decide that they're going to start putting restrictions on leaking of information or dissemination of information. They have a public interest defence there and then steadily the British move towards taking that public interest defence away. The Americans in 1917 they look at the British acts, they start copying them. Now the British are copying the American acts. In every single case the wording gets transported across the Atlantic from one country to the other and the trend is ever more restrictive. The Americans still have the First Amendment, the British don't. The question is, and this is for me as a person who works in Britain, the practical question is not whether the First Amendment exists in the United States, of course it does. Will the courts in the United States, when they are presented with a prosecution, will they still recognise the First Amendment in the way that James says? Will they still feel themselves bound by this or will they take the trend of the legislation and try to work their way around it? And now that's a question I can't answer. That's more for James as an expert in this to say, but in Britain at least we don't have that defence and the courts, the House of Lords and the Shaler case, the entire drift of judicial decision making is towards accepting the fact that this process is becoming ever more restrictive and it's clear that the Article 10 of the Human Rights Act and of the European Convention for Human Rights, that isn't a defence at all. James, you want to respond? Yeah, well the question is, it's very nice for an American lawyer, as this is myself to say, the courts have to apply the First Amendment because that's what the law requires and then ask yourself, well as a practical matter are they going to do it? So the answer goes like this I would say, number one, they are going to use the First Amendment because they have to, but the point nonetheless is well taken and this is point number two, that even though the courts are required to apply the First Amendment, they may not apply the First Amendment in a way that would protect Julian Assange. I gave you an example of how to get Julian Assange, which is to show that, I want to use the word sources again, but that's not the right word, have said about their activities and I said, well let's use clear and present danger. Well it's not the right test, theoretically, but the government has the ability to decide which test it's going to propose and the courts have a final ability to decide which one they're going to apply. So I can say they've got to protect them under the First Amendment, but the courts will say, well I've got the First Amendment, but it doesn't protect them. So the final word is the courts, they may go through the method of using the First Amendment, but it may be in the end, the way they use it is in a fashion as though they didn't use it at all, because that's the way the courts are. Well, so you maintain, even though it's strict liability with the Espionage Act, the government still has to prove that harm was done? Yes, they got to prove that the First Amendment was met. Now as I've just said, the big argument that takes place between the government and First Amendment lawyers is there are many tests under the First Amendment, clear and present danger no longer is the test, and I won't bore you with all the ones that have taken its place, but there are choices and that'll be a big fight, well I want this one, I want that one, I want this one, then the court and the court decides, but the court has to decide that some First Amendment test applies, whether they apply it the way we want it to apply it, as I said. Well, let me ask you about two things. One, there's some legislation and a bill floating around and Congress will probably never even go to a committee or get out of it, and that was put forward, I think by Ro Khanna and Tulsi Gabbard when she was in there, that would amend the Espionage Act to carve out an exceptional circumstance for journalists, that they could not, because right now there's no distinction between any person that has unauthorized possession and dissemination, the journalists are not, we can be charged as we've seen indeed Assange has. So I don't know if you know about that James, and then the other issue is, if he were indicted to the U.S., and let's say he lost, and his lawyers go to the Supreme Court, could they, how far could they get to actually finally challenge what is a clear conflict in the Espionage Act against the First Amendment? Well, they will, okay, so there's two questions, I'll take the second one first. Okay, so now we have the idea that there's a case, and the case goes to the Supreme Court, and the question is, will the court try to rationalize the First Amendment with what the Espionage Act says? And my answer is, of course they will, but I also said maybe they won't, maybe they will, and maybe they will, is probably the answer to your question. I will note on the negative side of all this, is that the President's Supreme Court, which is a conservative court, is very good on the First Amendment, but that doesn't mean they're going to be very good on national security cases involving the First Amendment. So to answer your question, yes, the court will try to resolve the conflict. Let's hope they resolve it in our fashion, in our way, but they may not. As to the first question, as to the proposed legislation, I do remember looking at it, and I remember the carve out, I didn't have any problem with it, and I also believe that there was a public interest defense in the Grover Act. So your question with respect to the first question is, there's a lot of action in Congress of people trying to amend the Espionage Act, and you just cited one example, and so where does that take us? Right now it takes us nowhere, because unless you get a really liberal Congress, nothing's going to happen. I don't think to the Espionage Act. Yeah, it's not easy to amend it. It has been, obviously, a couple of times in 1950, in that 61 amendment that expanded the territoriality of it. In fact, six times as Congressman Poff from, I think he's from Virginia, he tried to get this vote and he finally got the change. Because of that case in Poland, we're an American diplomat at the embassy in Warsaw, was caught in bed by the Polish security services, and he was blackmailed, and he said, if you don't give us these documents, this is going in the newspapers, and he gave the documents by leaving U.S. territory, and they couldn't get them on the Espionage Act because it was not on U.S. territory, and that isn't Snare Julian Assange, that case, because otherwise they could not get Assange. He said, not an American, he didn't do any of this on U.S. soil, and yet a lot of people really get annoyed about that. It is, I guess, annoying that universality, but it is an empire, after all, and they do feel like they have rights all over the world, and they will rewrite their laws in order to be able to do that. Alexandre, I just wanted to move on if we can to a little bit of the history of this because you alluded to this, Alexandre, that it's become more restrictive. You go back from the very beginning, there was, before 1889, there was no Espionage law in the U.S. or Britain. It didn't exist. The only thing they can get somebody on was stealing government property, or entering a military base illegally, but the idea of possessing a classified document, and then there's this really funny case of Charles Marvin, who was worked in the foreign office, he was a clerk. He also didn't make a lot of money, so he freelanced articles on the side, and he actually memorized a secret British Russian treaty, and then wrote an article based on it. They couldn't get him on anything because he didn't physically steal the document. People think that was the genesis of the official Secrets Act of 1889. It may have contributed to, so they could actually was geared, and not only towards classic Espionage, but to a journalist as well. And then it did have, and you pointed this out to me when I was doing that piece, that it clearly mentions public interest defense in there, and that that was because parliament at that time was worried that this could prevent the disclosure of corruption and illegality by the government. So there was a more progressive parliament, maybe, or a mindset back in 1889 that we've got today. Absolutely. But of course, this is the tension that existed in Britain in the 19th century. There was a kind of liberal tradition in Britain, which coexisted together at the same time with a sort of imperialist tradition. And one always has to understand this tension. So I mean, you go back to a sort of whole set of decisions, judgments that were made in the 18th century. I mean, I mentioned the Wilkes case. I mean, the Wilkes case is much misunderstood. And I mean, I don't want to go into all that history. But the point was that was this tradition in Britain, there was a liberal country that we weren't like the Europeans who were, you know, continentals, their censorship, that all of those sorts of things. We were even very slow in Britain in setting up a police, for example. But eventually, we are an empire. We are a monarchy. We are in competition with other great powers. And of course, we also have, and this is particularly important in 1889. And I'm sure that was part of the background, might not have been discussed exactly, but I'm sure it was there. There are problems in Ireland. This, you know, our closest colony. There's disturbances there. There's, you know, the Phenian movement is growing. So we are going to start protecting our secrets. And you have this tension. And the point about what happens is that when that boundary is crossed, when we first decide in Britain to pass an official secrets act, which we do in 1889, putting to one side, if you like, our libertarian tradition, we nonetheless close and encompass within it a public interest defense. But the drift ever after, from that moment on, is to make the process ever more restrictive. So it becomes more restrictive. It becomes more all-encompassing. It becomes tougher. The penalties become tougher. It starts extending to the media. And this has been a steady progressive trend ever since that line was crossed way back in the 1880s. That's absolutely fascinating that the liberal tradition is eroded now in current days. But James, the US also had, I guess you could say, a liberal tradition. And I want to turn to the Pentagon Papers case, of course, which you play such a big part in. When you read the judgments of some of these justices, I mean, they sound like a defensive Julian Assange. They sound like they're Assange supporters. This is 1970 or 50 years ago. And for example, I mean, Hugo Black, right, one of the judges in the Supreme Court case, he challenged this national security mantra, you know, that's still used today. He has sub-diffuse to justify repression. He wrote, the word security is a broad vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our republic. He said in the First Amendment, and I love this wonderful line, in the First Amendment, the founding fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The government's power to censor the press was abolished, so the press would remain forever free to censor the government. The press was protected so that it could bear the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government, and paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. I mean, the language is just extraordinary, but the what it says is even more. As I say, this could be a defense of Julian Assange today. Well, how far have we sunk, James, when you hear those words? What does it make you think about what's happening now? Well, I guess there's two ways, two places to look for your answer. And of course, the first place we want to look is the Supreme Court. There's no question in my mind if the Assange case were to be brought before the Supreme Court that existed in the Pentagon Papers case, Assange would win for the reasons you said. There's some you would lose. I vote here and there, but you still have five. You'd have five to win. The question, however, is not how you would have done then, but how you're going to do now. And we actually don't know how the present court thinks about national security. We think we know because we know they're conservative. But as I said earlier, nonetheless, the court is good on the First Amendment. But I did when I'd said that say, but we don't know how they're going to be on national security cases. So we just don't know the answer to the question as applied to the Supreme Court. I think you asked a broader question, however, which is, wouldn't you think after the Pentagon Papers case that generally speaking, the world of opinion would see the ridiculous nature of the classification system, the overclassification of everything in sight, including the menu for the Army Navy game in 1947. But I think the broader import of your question is if you ask sort of generally people of the Vox populate what they think of national security, they're not going to give you the answer that Justice Black did. And they still think that anything that has been decided by the United States as damaging national security is for the government to decide and not for the people to decide. And so it is fair to say that one approaches with some caution what a we think the Supreme Court is going to do with a case like Assange and the be public opinion, which we haven't talked about much in this much in this program, particularly as is affected by media opinion, which has been absolutely horrendous and terrible with respect to Assange. So I think that is the broader ramifications of the answer to the question you asked. Well, absolutely. Alexander, please weigh in because it seems to me both of you are saying there is a liberal tradition that is under threat, which defines whether the U.S. and Britain are democracies or not really in name or or they really if those liberal traditions fall by the west. This is why I think so many people look at the Assange case as so monumentally important way beyond the life of one man. Well, indeed, absolutely. If you go back to Hugo Black's comments, it's important perhaps to remember Hugo Black is a justice who I mean, I speak from memory. I think he was born in the 19th century. He was, I think, somebody who became a lawyer, became a justice or at least was involved in the law long before the United States developed its national security state. So he is somebody who is inculcated in the Republican democratic tradition. And in fact, I think in those words that you quoted, he actually uses the word republic. Now, what we have today, and it's exactly the same thing trend line in Britain, Britain was the preeminent great power in the 19th century. The United States has become the great preeminent great power in the world today. By the 1880s, Britain was involving a national security state. By the early 1970s, the United States was evolving a national security state. Today, that evolution in both countries has gone much further. And in the United States, of course, you have a whole generation of lawyers who have grown up in within the framework of that national security state and the great power politics that come with it in a way that Hugo Black, probably just didn't have. So that, I think, is the difference. It's a major difference in perception. And if you like, in philosophy of understanding. Now, I have to say that, of course, there is a huge danger in all of this, because if you are going to make these decisions, going to start framing decisions in a way that try to go around the simple meaning of the First Amendment, then what you are in effect doing is you are replacing the constitutional system of the United States and its democratic systems with something that is different and which has more roots in the national security state that we now have. So in a way, the tension between the United States as a republic, a democracy and a great power is being won by that part of the United States that points towards it being a great power. It's got more defences because it's got the constitution. It's got the First Amendment. It's got more defences than Britain does. One senses that the United States, because it's a republican, a republic, it's got a stronger democratic tradition than Britain realistically has ever had. Perhaps the antibodies there, the legal antibodies and the political antibodies are stronger than they are in Britain. But it's a tough call and I'm looking at it from a British perspective. I find myself wondering how far America, if you like, will remain true to its original traditions or how far it will be swept along by the sort of great power mentality that is now becoming ever stronger. James, I'll give you the last word in response to what Alexander just said. Well, I think that I agree with everything Alexander has said and I wish to put it in the context of the digital revolution, which is that we have much more information floating around than we ever did before. And therefore, governments are tempted to control all that information to maintain the confidentiality of the government's decisions. The problem is that the government confuses confidentiality with national security and believes everything it keeps confidential affects national security. And it's that misapprehension that brings us to the point that we are today where we have a case where the government is overreaching with respect and protection of its information and what it makes this case so important for the future of not only the press but the country. James Goodall and Alexander McCouris, brilliant discussion. Thank you so much for joining us and staying over an hour. I want to thank our producer, Kathy Wogan and our audience for listening and I want to sign off for CN Live. This is Joe Laurier until next time. Thank you. If you are a consumer of independent news and the first place you should be going to is consortium news and please do try to support them when you can. It doesn't have its articles behind a paywall. It's free for everyone. It's one of the best news sites out there and it's been in the business of independent journalism and adversarial independent journalism for over two decades. I hope that with the public's continuing support of consortium news, it will continue for a very long time to come. Thank you so much.