impact on the prosecution be if you get a comment like last week by defense secretary robert gates, well some of the criticism of this is overwrought, some fears about the damage done by the release of these diplomatic cables is overwrought? that would hurt the prosecution potentially? >> it would hurt the prosecution potentially and the government would use it, but it would not, certainly would not bar the prosecution. >> paul: now shall the espionage act has never been used before to my knowledge and correct me if i'm wrong, as far as i looked back on it, never been used against a publisher, not even world war ii when the chicago tribune disclosed that we had suggested that we had broken the japanese code after the battle at midway, fdr decided that administration not to prosecute. why would you make an exception in this case? >> wl, the reason that they decided not to prosecute in world war ii is not because the statute didn't apply, but rather because the japanese hadn't picked up on the story.
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