In the last years of his long and extraordinary life, Daniel Ellsberg, the disillusioned military analyst who famously leaked the so-called Pentagon Papers in 1971, wanted to be prosecuted. And he hopes I can help make the way.
The charge he is seeking is mishandling national security secrets under the Espionage Act, and his plan is to give me another classified document he obtained decades ago that he has kept without the consent of all time. He wants to put up a defense in a way that will give the Supreme Court a chance to declare that law unconstitutional because it is applied to those who disclosed government secrets to journalists. This is the same law that former President Donald J. Trump is now accused of violating 31 times, albeit under very different circumstances.
The disclosure of Mr. Ellsberg’s 1971 Pentagon Papers — a classified study of the Vietnam War that showed a generation of military and political leaders lied to the public — and its fallout left a stamp on history that defined much of his life. .
But buried in some of the obituaries is a glimpse of references to a 2021 episode where he gave me a secret document about a push by American military leaders to make a nuclear first use. strike in China in 1958, accepting the risk that the Soviet Union would do. will retaliate in kind for his ally, and that millions of people will die.
In examining his legacy, the scrutiny he tried to bring to the Espionage Act in making that disclosure also deserves attention.
“I, if accused, will express my belief that what I did – as I did before – was not criminal,” he told me, arguing that using the action “to criminalize the classified telling of the truth in public that interest” should be considered unconstitutional.
The government has various tools to prevent and punish unauthorized disclosures to journalists and the public, and for most of American history, it has not tried to send leakers to prison. The Espionage Act has been on the books since World War I, but it wasn’t until the second half of the 20th century that the government began trying to use it to charge leakers instead of spies — initially, in little success.
In 1957, the military included Espionage Act charges in the court-martial of an Army colonel for providing reporters with information about a disputed missile program, but prosecutors dismissed the charges. In 1971, the Justice Department obtained its first indictment in the case against Mr. Ellsberg and an associate who assisted him, Anthony Russo. But a judge dismissed the charges, citing government misconduct and illegal evidence collection.
A decade later, the Justice Department under the Reagan administration tried again, bringing Espionage Act charges against a defense analyst who provided classified satellite photos of a Soviet shipyard to Jane’s Defense. Weekly. He was convicted. But it is strange and unfair that only one person went to prison for an act that happened so often in the decades that President Bill Clinton pardoned him in 2001.
Beginning in the middle of the George W. Bush administration and continuing under presidents of both parties, however, the Justice Department began to routinely pursue leakers using the Espionage Act. The law carries harsh penalties – 10 years per count – and prohibits defendants from suggesting that jurors acquit by arguing that their disclosure is in the public interest. Most defendants take plea deals to avoid the risk of long sentences, foreclosing the opportunity for appeals challenging the constitutionality of the law’s use in such circumstances.
Mr. Ellsberg and I talked about the government’s rapid use of the law in 2014, when I wrote about how Edward J. Snowden, a former National Security Agency contractor who leaked secrets about the activities of surveillance, joined the board of a nonprofit. press freedom organization Mr. Ellsberg helped with the search. (Mr. Snowden, whom Mr. Ellsberg publicly welcomes as a kindred spirit, lives in Russia as a fugitive from Espionage Act charges.)
“The question – which almost nobody knows, I would say, is a question – is this application of the Espionage Act to people who inform the public in the US, not secretly inform a foreign power like a espionage, constitutional,” he said. to me. “The issue can hardly be raised now. It wasn’t in my mind when I revealed the Pentagon Papers — I thought I was violating the plain language of that law, as I was warned. And I was.”
In the years that followed, many sources for journalists faced charges under the Espionage Act. And in 2019, the Justice Department under the Trump administration crossed a new line by taking an Espionage Act indictment on WikiLeaks founder Julian Assange — not for leaking, but for solicitation. and publishing leaks. The department under the Biden administration hid unprecedented cases; Mr. Assange delayed a trial by fighting extradition to Britain, but continued to lose appeals there.
Against that backdrop Mr. Ellsberg called me on a sunny Saturday afternoon in the spring of 2021. At the time, I was watching a Little League game. I moved away from the low bleachers and lawn chairs so the other parents wouldn’t hear.
Decades ago, Mr. Ellsberg said, he obtained a second classified study based on internal government records, which he did not provide to reporters at the time of the Pentagon Papers because it was about a different subject. : when Chinese Communist forces attacked the controlled islands. by Taiwan in 1958, which caused a crisis. It shows that the world is closer to nuclear war than the public is allowed to know.
Am I interested in writing about it? I am.
In the following weeks, I carefully read the Taiwan study and consulted experts on the history of the 1958 crisis. While I was working on my article, Mr. Ellsberg and I talked back and forth. He prefers to talk via video call from his crowded home office in California. In a long call, his wife, Patricia, joined us.
Part of his motivation, he said, was the renewed tension in Taiwan. He said it is likely that the Pentagon war planners are making contingency plans to use nuclear weapons if China attacks Taiwan and this shows that conventional weapons are not enough to repel it. He thinks that the possibility of any drastic measure should be a public debate.
But the other reason, he said, is that by openly confessing to keeping and disseminating the classified document without permission, he hopes that he will be charged under the Espionage Act. He wants it to be a test case for the Supreme Court to rule on the constitutionality of how the Justice Department uses the law to punish leaks.
The provision against the unauthorized retention of national security secrets, he pointed out, is so widely written that, on its face, it can also be used to accuse journalists, publishers and even readers of an article. to the newspaper about a classified matter telling a spouse about it or keep a clipping instead of turning it over to the authorities. Citing the chilling effect that the law’s creeping expansion has on what information the public can get in a democracy, he expressed disappointment that the Biden administration has not dropped the Espionage Act charges against Mr. Assange.
“It’s obviously too broad and doesn’t just apply to people like me who have a security clearance. Assange is now feeling the brunt of that,” he said, adding: “For 50 years I’ve been saying to journalists, ‘This thing is a loaded weapon staring at you.'”
In short, at the age of 90, he is willing to risk the prison sentence he escaped when he was 42. The plan of Mr. Ellsberg. The article was published and attracted some attention – but to his disappointment, no cases occurred.
“I’m looking forward to arguing in court,” he told an interviewer in March, after he announced he had been diagnosed with pancreatic cancer. “It was before I knew that my life was shorter than I expected.”