that we would cut spending by $3 and increase taxes for $1 for every cut in spending. that was the ironclad agreement. and guess what happened? we increased spending, and we did -- excuse me. the presiding officer: the senator's time has expired. mr. mccain: and the fact is we raised taxes and did not cut spending, and that was a direct violation of the commitment he got from the democratic leadership. i yield the floor. the presiding officer: the clerk will report the motion to invoke cloture. the clerk: cloture motion: we, the undersigned senators, in accordance with the provisions of rule 22 of the standing rules of the senate, do hereby move to bring to a close debate on the reid motion to concur in the house amendment to s. 627, with amendment number 589, signed by 18 senators. the presiding officer: by unanimous consent, the mandatory quorum call has been waived. the question is, is it the sense of the senate that debate on the motion to concur in the house amendment to s. 627, with

amendment number 589 offered by the senator from nevada, mr. reid, shall be brought to a close? the yeas and nays are mandatory under the rule. the clerk will call the roll. vote:

vote:

the presiding officer: does any senator still wish to cast a vote? if not, on this vote, the yeas are 50, the nays are 49. three-fifths of the senators duly chosen and sworn not having voted in the affirmative, the motion is not agreed to. mr. reid: mr. president? the presiding officer: the majority leader. mr. reid: i enter a motion to reconsider the vote by which cloture was not invoked. the presiding officer: the motion is reconsider is entered. mr. reid: thanks, mr. president. mr. leahy: can we have order. mr. reid: i ask unanimous consent the time until 4:00 p.m. be equally divided and controlled between the two leaders or their designees with

senators permitted to speak for up to ten minutes each during that period of time. the presiding officer: without objection. mr. reid: mr. president, the matter now before the senate is still the pending matter that we've been working on for several days. it's extremely important that everyone understand we have a message from the house and if we're going to work something out, which we're hopeful that we can do, that we have a piece of legislation that we can do that and not require a bunch of cloture votes. so that's where we are now. we're seeing if something can be worked out. i've had, for the information of senators, a number of conversations in the last hour with people downtown and the arrangement that is being worked on with the republican leader and the administration and others is not there yet. we're hopeful and confident it can be done. as soon as it is done, i'll let my caucus know. i've had conversations with republican leader and other senators. senators should be aware that further roll call votes are possible today. we'll do everything we can to give members adequate notice

before additional roll call votes are made. mr. mcconnell: would the senator yield on that point? mr. reid: be happy to yeild. mr. mcconnell: if there were to be a vote, i would assume we would have significant notice for our members because many members would probably like to leave the capitol if we're not going to be voting. mr. reid: i would say to my friend, that's an appropriate thing to do. i would not suggest a ball game, though. maybe closer than that. we'll give everyone adequate notice, though. as i indicated, we'll do everything we can to give members plenty of notice. as i indicated, we'll do on this side of the aisle a caucus later today, whenever we're able to do that. i would note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

mr. reid: mr. president? the presiding officer: the majority leader. mr. reid: i ask unanimous consent the call of the quorum be terminated. the presiding officer: without objection. mr. reid: mr. president, i ask unanimous consent the senate stand in recess subject to the call of the chair. the presiding officer: is there objection? without objection. the senate stands in recess the senate stands in recess

>> i remember a student i had at graduate journalism school by the name of libby lewis who was a lovely young woman who for some reason went into radio instead of television, and she became an npr reporter, and her beat was covering this dispute that scooter libby/jude at this time miller thing. and i remember hearing one of her reports on the radio, i think it was after libby was convicted of perjury and the

other fences, and she said that's what happened to louis libby. this is libby lewis reporting. [laughter] anyway, judy miller who had been subpoenaed by a grand jury that was investigating who the source of the leak of the identity of valerie plame was. valerie plame was an undercover cia agent, and her identity was leaked after her husband had debunked the administration's claim that saddam hussein was seeking nuclear material this africa. in africa. the court refused to hear the case in 2005 and left miller in jail. that was a big story because everybody had anticipated that the court would clarify and needed to clarify the extent to which reporters are able to protect their confidential sources. but in the miller case it was a

disi ponte -- disappointing nondecision, just a refusal to take the case. the only case that the court has ever decided on this issue was another one that i worked on the losing side of, and that was back in 1972 and involved earl caldwell, a reporter for "the new york times" who covered the black panther party. and did all the times' coverage of the black panther or party. the court in the caldwell case decided that reporters had to appear before a grand jury who were investigating something about the, about the black an they are party -- panther party, and the reporters had to testify like any other citizen would have to testify. and reporters had no first amendment protection against compelled disclosure of their sources. even if that meant that the

sources would dry up, not cooperate, and that would ruin a reporter's ability to report to the public what the sources knew. and, again, the background details about the case are in the book. when the court refused in youth it miller's -- judith miller's case in 2005 to reconsider this whole situation, that made it crystal clear that reporters can't honestly promise their sources confidentiality. would-be whistleblowers with sensitive and embarrassing information about government malfeasance simply can't trust that a reporter won't be subpoenaed to spill the beans about who leaked the information. somewhere wikileaks. enter wikileaks. and wikileaks provides through, apparently, this amazing encryption technology, complete

anonymity to leakers. its web site announces that it will accept, quote, restricted or censored material of political, ethical, diplomatic or historical significance. it says it, quote, does not record any source identifying information, and there are a number of mechanisms in place to protect any document from being sourced. it flatly says that it has never revealed a source. in other words, wikileaks can do what the mainstream media can't do. yes, a whistleblower could go directly to "the new york times" bypassing wikileaks, but that risks exposure of the whistleblower. if sub' thatted, the times -- subpoenaed, the times would have to finger the source. so, again, wikileaks partially repairs a gap in first amendment protection.

if there were a meaningful shield law or a first amendment protection that reporters and would-be sources could rely on, wikileaks might be be superfluous. congress almost passed a law in the last -- a bipartisan bill actually passed the house and was approved by the senate judiciary committee and never brought to the floor of the senate before the congress went home. unfortunately, the most recent wikileaks disclosures, that is most recent in the last congress, the state department cables seems to have antagonized enough senators as to torpedo any chances of enactment anytime soon. so, carl, you want to take a break? yes, no? yes? okay. take five, ten minutes, and

we'll pick up from there. [inaudible conversations] >> so the question is the question that confronts wikileaks and assange now, the first amendment question is whether assange can be criminally prosecuted under the espionage act or whether the wikileaks disclosures are protected by the first amendment. right after the state department cable were released, our own senator dianne feinstein wrote an op-ed's in "the wall street journal" that aggressively interpreted the espionage act, and she demanded prosecution of as strategy. assange. senator joe lieberman said that wikileaks disclosures are, quote, the most serious violation of the espionage act in our history and called as sang a traitor -- assange a traitor. sarah palin called him an

anti-american operative with blood on his hands. mike huckabee called for his execution. senator lieberman got busy and tried to put wikileaks out of business altogether. he successfully pressured amazon to stop hosting wikileaks web site, and he urged any other company that supported the wikileaks site to, quote, immediately terminate its relationship. and then pen pal and visa and mastercard promptly stopped processing donations to wikileaks claiming that it somehow, in ways not specified, wasn't complying with their terms of service. somebody pointed out that visa and mastercard, um, continue nonetheless to support the ku klux klan web site, the web site hawks their merchandise and

paraphernalia, t-shirtses and so on, and you can pay for it by credit card the way you used to be able to donate to wikileaks by credit card. i checked the klan web site day before yesterday, they're still doing it. visa and mastercard are still there, but they won't touch wikileaks. lieberman together with -- this is the company that he keeps these days -- lieberman together with senator john ensign from nevada -- [laughter] disgraced senator ensign, and scott brown of massachusetts co-sponsored a bill, what they called the shield act. t not about shielding report -- it's not about shielding reporters, it would have broadened the espionage act's already overbroad provisions to outlaw communication of any human intelligence source. for example, it would have made it a crime to mention that former panama dictator noriega who had been a cia asset at the

same time that he was convicted of big time drug dealing, that that mention would have been illegal under lieberman's view. whatever your view is, lieberman's attempts to completely shut down wikileaks and prosecute its staff under the espionage act doesn't commend him for, as a candidate for inclusion in the pantheon of first amendment heros. and the espionage itself, the espionage act itself is a mess. it was enacted in 1917 during world war i at the insistence of president wilson. it was the first loyalty-type law, um, that congress had enacted since the discredited sedition act of 1798. and that has a bunch, it's a mess. a hodgepodge of provisions,

virtually unintelligible that seem to make it a felony not just to hand over a secret document to the a spy, that's pretty straightforward, but also to, quote, communicate information, quote, relating to the national defense to people not, quote, authorized to have it if this could, quote, could damage the united states or give advantage to a foreign nation. some of the provisions in the act refer to classified information, some just to national defense information. we, of course, rely on the press to inform us about national defense information, information relating to the national defense. some of the provisions seem to require proof that the discloser intended to hurt the united states. the courts that have interpreted the act require that the information be closely held which is a problem if, in fact,

hundreds of thousands of government employees had the same access to the databases as private manning did. oddly, there doesn't seem to be any law on the books that deals specifically with the disclosure of classified state department cables. be -- no law prevents that. you may remember when the pentagon papers were published in 1971, the papers were a 47-volume classified, top secret study by the department of defense about our involvement in vietnam. and be the papers -- and the papers were leaked, we now know, with by daniel ellsberg to "the new york times." henry kissinger called ellsberg at the time the most dangerous man in america. they were published by "the new york times" after winning an epic first amendment battle in the supreme court, and after the

times had published the pentagon papers the nixon administration prosecuted ellsberg under the espionage act. and you may remember that the trial was aborted in mid trial when judge matthew byrne down in los angeles discovered that nixon's plumbers unit had burglarized ellsberg's psychiatrist's office in order to find dirt on ellsberg. and the judge was so outraged about this governmental misduct that he dismissed the candidate. the government did not are the "the new york times" and, in fact, no publisher has ever been prosecuted under the espionage act, and i don't think that the news media could be prosecuted under the act. when it was proposed back in 1917, the congress rejected language that made it a crime to, quote, publish defense information in the very

provision that senator feinstein relies on. the law does forbid, quote, publishing in other parts of the law, for example, the part that deals with revealing military codes or photographs of military installations and so on. congress knew how to prohibit publishing and deliberately chose not to in the provision that senator feinstein relies on. but is wikileaks like "the new york times" or like ellsberg? bradley manning, if he's the leaker, is like ellsberg. he's the government employee who violated his trust, and no matter how noble his motives gave classified information to someone not entitled to have it. manning's not charged with violation of the espionage act, he's charged with a military offense, and he's facing court-martial. if he were charged with the espionage act, i'm not even sure

that he could be convicted because the government would have to prove that he intended to hurt the united states or help an enemy and that his disclosures at least potentially damaged the united states. that's what a judge said was required under the espionage act a couple years ago when two aipac employees were charged with giving leaked information to israel, and the government had to dismiss the case against them. so far, as you probably know, the government has not claimed that anyone has been harmed as a result of any of the wikileaks disclosures. well, then what about assange? is he like manning, or is he like "the new york times"? is he a leaker, or is he a publisher? we don't know whether wikileaks was simply the passive recipient of classified documents that came in over the transom as we used to say. if it was, that's like the

pentagon papers case where the times received on a silver platter the pentagon papers from ellsberg. um, to be sure, publicizing documents that demonstrate high level lying and government duplicity as ellsberg did is different from the wholesale dumps that wikileaks at least initially specialized in, disclosing government secrets just because you can is not necessarily in the public interest. in recent months wikileaks seems to be moving away from anarchism toward journalism, maybe motivated, um, by the wish to seek some shelter under the first amendment. the wikileaks web site has changed its tune, it now repeatedly emphasizes that it, quote, journalists review leaked material and exercise some

judgment about what to put in the public domain. it even says that documents are redacted to avoid harm to informants and others. it hasn't fore sworn indiscriminate dumping or hostility to any kind of government secrecy, but using responsible judgment certainly does give it a better chance at first amendment protection. seems to me that in deciding whether assange and wikileaks has a first amendment defense you need to know just how they got the information. wouldn't you like to know what the conversation, if any, was between manning and assange? did assange actively solicit the leaks? did he pay the leaker? did he provide software assistance to facilitate the leaks? certainly, actively engineering the leaks might subject assange

to a charge of conspiracy which, of course, is always a prosecutor's favorite. and that would help the government avoid the first amendment contention that mere publication can't be made a crime. assange now claims that he never heard manning's name before it was published in the press. and says that a conspiracy would be impossible because wikileaks' technology was designed to make sure that wikileaks itself never knows the identities of the leakers. assange says, quote, we are as untraceable as we are unsensor bl. conspiracy or not, i think prosecution under the clumsy espionage act would remain problematic. i also think first amendment protection would depend on the court's considering whether the leaked information is of any legitimate public interest.

for example, outing a mole in another country's government is not in the public interest, not of the identity of that person is not a public concern just as identifying valerie plame, nobody knew who she was. before the leak. as an undercover cia agent, doing that didn't serve any legitimate public interest. but it seems like the -- doesn't it -- that the material in the wikileaks disclosures so far has been of some public concern. for example, the state department cables disclose the real reason google was forced out of china. the cables disclose, um, that american diplomats have been encouraged to spy on united nations officials in new york gathering personal information -- credit card numbers and be stuff like

that -- about u.n. officials. they disclosed that the saudis, something they would never cop to in public, that the saudis were actually urging us to bomb iran to wipe out its nuclear capability. and, you know, some of this confirmed, we guessed, that hamid karzai is involved in corrupt links to criminal war lords and that pakistan's playing both sides in all of that. and, sure, these, this information is embarrassing to our government and, certainly, to other governments like the former dictator of tunisia who the wikileaks, this state department cable showed that he was operating a column tock rah si in tunisia, and he was chased out of office in the first arab spring revolution.

um, the embarrassing information to many governments, but isn't this kind of information that informed americans ought to be entitled to know? and whether any disclosure actually caused harm has to be relevant to any prosecution. no harm ever subtle r resulted -- resulted from the publication of the pentagon papers. none. despite the government's property stations at the time -- protestations at the time that we'd be in serious national security difficulty if information came out, and the government has not yet identified any specific harm from the wikileaks disclosures. assange has, of course, been busy trying to fight extradition to sweden to face those sexual assault charges, and the wikileaks web site has for the last several months said that it's not open for new business, and it's getting an overhaul. ..

>> it will screen the leaked materials and make some judgment about their newsworthiness. and rather than dump them in the public domain themselves, they will then enlist the help of mainstream news organizations away wikileaks has done recently with "the guardian" and "der

spiegel" and "the new york times." two that the material, to fact check it and redacted if necessary and so on. like assange openly is about government transparency. but, you know, there's really no way for these organizations to know what the leakers actual agenda is. there some conscious stricken whistleblower who is leaking the information, or is it a political operative like scooter libby who is out for partisan advantage or to hurt a political opponent? let me close with this. however the first amendment issues play out, let's hope that our governments hands are clean. we know about joe lieberman's attempt to destroy wikileaks, but we have no evidence that the obama administration, the white house was complicit in

developing the sexual misconduct charges against assange after wikileaks did three big releases last year. maybe just a quince event that following up on those disclosures, friendly sweden issued an extraordinary international arrest warrant seeking assange's extradition on a charge of failing to use a promised condom. there can't have been many instances of using that kind of heavy heavy legal artillery for such a charge. [laughter] companies that supported wikileaks, the site like paypal, amazon, visa, mastercard, may have decided independently without any government prompting other than from joe lieberman to withdraw their support, and the hacker attacks on wikileaks

servers may have been orchestrated by freelancers without any government encouragement at all. it would be really distressing to learn that our government was involved in any of this year and and imagine the irony if government complicity were established by a secret government documents someday to be released by wikileaks. [laughter] [applause] >> thank you very much, professor. thank you very, very much. questions? students, show me your hands. we will get you the microphone. anyone? over here, okay. >> to be prosecuted under the espionage act, anybody can be or don't have to be an american citizen? >> anybody can be.

there's some issue about -- some issue about our ability physically to criminally charge somebody who is not here. you've got to get them here in order to do that. there is an issue under the espionage act about prosecuting private citizens as opposed to government employees. all of the prosecutions under the espionage act, including of ellsberg, up until the aipac employs three or four years ago were of government employees who disclose information. the aipac employs were the first private citizens to be charged under the act, and that prosecution was unsuccessful. >> is there any evidence on whether the two newest appointees to the supreme court are any more favorable to the first amendment than their predecessors?

>> well, there's not much evidence. they haven't decided many cases. the problem is that the justices they replaced were pretty good on the first amendment. that is justice stevens in particular had come, he was president ford's only appointment to the court, and he'd come from being a middle-of-the-road republican to what passes for the head of the liberal faction. he was very strong on first amendment issues. again, the latter years of his time there. and justice to have become to be pretty good also. but the replacements haven't yet made the difference. at least one more. in order to make a difference. although, some of you i'm sure i've told you, the best justice on the core, the strongest justice on the court on first

amendment issues in my view is anthony kennedy. nice catholic boy from sacramento. who is really good on the first amendment. >> in the 60 minute interview, assange admitted the charges against him. have others had an economic impact and have you heard lately whether he's on the verge of shutting down? >> well, they are pleading poverty to some extent. i don't know where they are getting any money these days. i think some of the people who are doing movies on assange are probably paying. he's got, i think it's a $1.7 million contract, so they are not impoverished yet, but they are limping along. when they were cut off by all of the credit card companies this month, that had to hurt.

>> what kind of legal representation does manning have? and with any pro bono group ever want to get involved? >> there's a whole support system for manning. free brad penny operation. i'm sure you can find them online. and he has a lawyer. i'm sure a signed the military to give any resources, but he has a lawyer. i don't know who the lawyer is, or the name even, but he seems to be doing all the right things. he was not able to spring manning from the awful conditions that he was held in at quantico. he is now at leavenworth. apparently it's a little better. he can associate with other prisoners and so on. but he will be well represented, i don't doubt that. this is not a plant. >> i assume you think there are appropriate times when the government should act in

secrecy? >> should act against wikileaks? >> no. that there are appropriate times for the government to be secret. >> sure. the government has the legitimate need for secrecy in many situations. can't be doubted. i would never -- for example, had wikileaks learned a week ago of the plan to go get osama bin laden and had leaked about, aborting the mission, that would have been a major, major prosecutable case. any more questions? >> with you telling us all these ways that we cannot convict, you know, wikileaks and everything, how did they convict scooter libby? >> scooter was not charged under the espionage act.

libby was charged with the five counts, to of perjury, to a false statements, to government agencies and one obstruction of justice. like barry bonds. for his false testimony. and he was convicted on four counts, one of the false statement counts he was acquitted on. he was convicted on all the others, and then as you recall his sentence was commuted. he was not pardoned. his sentence was commuted by president bush. >> question is back here. >> when dick cheney outed, why was that not considered, you know, breaking confidentiality and form of espionage or form of treason? >> i'm sorry, i miss the very first thing you said. >> when cheney and his cronies outed valerie plame, why wasn't

i considered? because he's working for bush? is that why it was okay? [laughter] >> the prosecutor certainly didn't announce that was the reason. know, there's a whole separate law on disclosure of the identity of intelligence agents. and that law itself apparently has some flaws, and the special prosecutor in the case, fitzgerald, a guy from chicago, apparently decided that he could not prove the elements of that case against cheney or libby. >> people seem to have been prosecuted for lying to the fbi. is there an obligation to talk to them when they come see you? can you just refuse to talk to them? >> must be some good criminal lawyers here.

[laughter] who have intimate familiarity with that. my impression is that you don't have to talk to them. you don't have to talk to them at all. they don't have any legal compulsion on you to talk. if they subpoena you to a grand jury, yeah, you'll have to testify. you can always take the fifth. but you can't take the first. [laughter] >> bill, would you go back and look at the espionage act and deal with word on authorized? >> my question is, if -- if you are unauthorized, that's a cry. supposing you the information and your authorized to have it. is that a violation from the statute? >> i'm not sure i follow that. >> if your authorized to have and you don't get it to anybody else, no problem. if you give it to someone else is that a violation? >> to someone not to have

speeded the word authorized pertains to the person who initiated the exposure, i thought. >> not necessarily. and the crime also includes failing to give it up. you may have, some of you read the fine print in a letter to assange, threatening assange with prosecution for failing to give up the information which itself is a cry. not just disclosing it but having it without authorization. >> what do you think was the strategy to commute scooter libby's sentence rather than pardoning him? and what's the difference in the results to them? >> well, the difference is that he remains in convicted felon, with the commutation rather than the pardon. he remains a convicted felon who is ineligible to practice law. he will forever be known as a convicted felon. the commutation simply lowered

the sentence from whatever he was sentenced to, 30 years, 10 years, do nothing. [inaudible] >> i don't know. i assume it's entirely political. >> can you believe something would ever be entirely political? [laughter] including this issue of first amendment writes. vester turner, thank you so much for being with us. [applause] >> for more information visit the publisher's website. >> booktv took a tour of the confederate memorial in charleston, south carolina, with robert rosen, author of confederate charleston.