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Daniel Ellsberg: There was no law against leaking the Pentagon Papers nor is there now against WikiLeaks

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay, and we’re in Santa Clara, California. Now joining us to talk about the WikiLeaks and his latest thinking on this issue is someone who knows a lot about leaking, Daniel Ellsberg. Daniel was a former State and Defense Department official who was prosecuted for releasing the Pentagon Papers. So, Daniel, what’s your latest thinking on the WikiLeaks controversy?

DANIEL ELLSBERG, FMR. DEFENSE DEPT. OFFICIAL, LEAKER OF PENTAGON PAPERS: Every administration hates leaks that they haven’t made themselves, that haven’t actually been authorized by their own high officials, which is the greater part of leaks. Nearly all leaks to the newspapers, so-called, are actually authorized by a boss, or even by the highest officials. So unauthorized disclosures that are truly unauthorized, real leaks, are very much a minority of what we see in the newspapers of classified information or scoops or leaks, backgrounders, and whatever. Every administration, really, would like to close all of those off, and when they talk about there being too many leaks, they mean too many of the kind we didn’t want, that we didn’t make. And that’s what WikiLeaks represents. So they would like to close down WikiLeaks as a channel for information about what they’re doing.

JAY: What WikiLeaks is doing and will do more of has set quite a precedent, and it really shakes, at the very core, a whole fabric or structure based on the ability of governments, and particularly the US government, to keep its secrets. So it can’t let this go. It–does it not, from its view of maintaining control of information, have to really punish or undo this precedent?

ELLSBERG: Well, most countries in the world could very straightforwardly prosecute Julian Assange, just as they are prosecuting Bradley Manning–who’s military and who is subject to military law, by the way. The US is disadvantaged, from the point of view of most dictators in the world, because we don’t have an official secrets act like Britain’s that criminalizes any and all disclosure of classified information. We have some very narrowly defined official secrets act that proscribe giving out, for example, nuclear weapons data or communications intelligence or the identities of intelligence agents, covert agents, like Valerie Plame–that was wrongly and unlawfully leaked, really, by the White House. But we don’t have a law that makes it simply criminal to put out classified information as most people assume we do. Nearly everyone assumes that. And most nations do have it. The reason we don’t is we have a First Amendment. And the idea of the First Amendment, the freedom of speech and the press–which other countries don’t have in their constitution, by and large–the reason for it was precisely to assure a flow of information to the public through the newspapers and otherwise, and for citizens to be able to discuss that among themselves freely, and expose it, resist it, and whatnot, about the shortcomings of government, about incompetence, about corruption, about wrongdoing, about aggressive war, as matter of fact, like the war we waged in Iraq against Iraq, which was a clear-cut crime against the peace, or about reckless policies or hopeless policies, like our war in Afghanistan right now, or like the war in Vietnam, which I was one of those who helped expose. That was the purpose of the First Amendment.

JAY: Does this protect Bradley Manning?

ELLSBERG: It should protect Bradley Manning from the charge that he’s facing, which is the one he shared with me, 18 USC 793 paragraphs (d) and (e). I was the first person prosecuted ever under those sections of what’s called the Espionage Act. And really those sections should be ruled unconstitutional. They really–read as they are in these cases, to apply to disclosures to the American public rather than spy cases (to secret disclosures to an enemy, or even an ally, to a foreign country), used against something other than espionage, they really should have been held unconstitutional. And the reason that they have been used so sparingly before Obama–only three cases involving those charges–with all the leaks that occur daily, weekly, three people have been brought–three cases have been brought up under those charges. And the reason for that was that they knew that they risked losing those cases as unconstitutional in the Supreme Court.

JAY: But they lost your case.

ELLSBERG: They–it just banned too much information from the American public without excuse. It stunted our democracy too much. So they were afraid to use the case, really, use those acts, lest they be found unconstitutional. Now, Obama has brought, actually, already, five such indictments in his two years–in other words, almost twice what all other presidents have done put together. He’s using that act as if it were an official secrets act, apparently not worrying that this Supreme Court is as likely as earlier ones to find it unconstitutional. Or maybe he just doesn’t worry about that. The intimidating aspect of bringing people to trial and forcing them [inaudible] extreme expense and stress of long trial might be enough to keep people away from leaking. But other presidents, interestingly, didn’t do that. He’s the one who has this campaign on against freedom of the press, I would say.

JAY: So what tools do they have, they being–if the government wants to undo this precedent of WikiLeaks and take some action to stop people doing this in the future, what tools do they have? And then, how do they go after WikiLeaks without going after The New York Times?

ELLSBERG: They have all the tools that have kept most guilty secrets secret for far too long, enough secrets, enough guilty secrets, long enough to get us into Vietnam, which was a crazy adventure, or into Iraq, which was a crazy adventure, or into escalation in Afghanistan, equally crazy. Had the dissenting opinion within the administration itself been leaked, or just testified to honestly and openly by officials who knew that the policy was hopeless, we wouldn’t have gotten into those wars. So it’s not–the fact is that their ability to keep secrets is very great, and the way they do it is without actually prosecuting people, up till now. But in previous administrations the way they did it simply was threatening to take away clearance, take away job, take away access, promotion, all the things that actually threaten even a marriage.

JAY: But with the Internet and this kind of a possibility of a WikiLeaks where you can have something get a mass audience–. I mean, before the Internet, if something like this happened and the government put pressure on newspapers not to publish, it would go away. But you have now the ability to have a world stage that Julian Assange was able to make use of. Don’t they need to make a lesson out of Julian? How do they let him get away with this?

ELLSBERG: Well, they want to. There’s no question.

JAY: What will they do?

ELLSBERG: That’s what they felt about me, obviously. As I said, I was the first person prosecuted. It had never been done before for a leak, for a disclosure. Now, why me? Well, it was obvious: 7,000 pages of top-secret material. In other words, far more sensitive than anything that’s come out out of WikiLeaks. And they could not easily afford not to prosecute me without admitting that they didn’t have a law to go with, which is the case. But most people didn’t know it. And if officials were really informed of the fact that you could put out 7,000 pages and not even get prosecuted, there might have been more leaks. So my prosecution was meant to intimidate people. And it did have that effect. I was facing 115 years in prison. And even though the charges were dismissed, no one rushed to do that again for 40 years, and that–with very few prosecutions in between. Only one person actually has been convicted by a jury for a leak, Samuel Loring Morison in 1985, one person in all that time. So they run this system without successful prosecutions. They run it with the threat of ruining your career (your career, not just the job), your ability to function at all in government, or even, in most cases, outside government.

JAY: People differentiate what you did from what Bradley Manning did. They say you–in a very specific case of what you thought and I think everyone that saw the papers afterwards thought was an egregious deception that helped justify war, and you exposed that, whereas Bradley Manning has just dumped 250,000 pieces on the Internet, much of which is either benign or you could say is the normal course of things that people should be able to keep to themselves.

ELLSBERG: By the way, you know, I’m sure you’re aware, but what you just said is a cliche now, that he dumped 250,000 cables on the Internet, which is what he–

JAY: No, to WikiLeaks.

ELLSBERG: –what he did not do.

ELLSBERG: What you said was the Internet, and what is usually said is the Internet, which means the world, that he’s given it to the world. Actually, he did not do that. He gave it to WikiLeaks, which is functioning more and more as an investigative tool, but it’s functioning like a newspaper in the sense–. They have put out less than 1 percent of the cables that he actually gave them. There’s nothing indiscriminate at all about what WikiLeaks has done or that Bradley Manning did. He gave it to WikiLeaks. He could have put it on the Net. He had the capability to put that on the Internet. Even I, with help from my son, probably could learn how to put that on the Internet. That’s no big trick. He didn’t do that. What he’s done, actually, was give it to WikiLeaks, who in turn has allowed The Times, The New York Times, Der Speigel, El Pais, Le Monde, and The Guardian to make the editorial choice with their staffs and their experience and their times. And WikiLeaks has put out almost nothing that those newspapers didn’t choose to put out. So the word indiscriminate is simply false about what he’s done, and it’s a part of demonizing what he’s done. Of course that sounds bad, and it’s not what he did. In my case–by the way, I’m not quite sure what the meaning of all this is, Daniel Ellsberg did it right, he was experienced, he had a particular war, and he was exposing all this, and so forth. So what? I was prosecuted just like Bradley Manning. Are they really thinking that people extolled me at the time, that the government did? The president and the vice president called me a traitor, which was wrong, foolish. It was false. And now they’d call me a terrorist–that wasn’t in vogue at that time. But I was called names as widely and by as high-level people as Bradley Manning or Assange. Governments–and not just American governments–governments don’t appreciate losing control of information about what they’re really doing and what they’re really planning and thinking and what the cost and the risks may be.

JAY: Explain to me how you won your case, and what it means [inaudible]

ELLSBERG: I didn’t–well, I didn’t win the case. What happened was that the charges were dismissed. This was all 40 years ago, so it’s fresh in my mind but not anyone else’s. The charges were dismissed when it came out on successive days, over a matter of weeks, actually, that the Nixon administration had carried out [inaudible] sequence of criminal acts against me while I was on trial, with the purpose of silencing me from revealing secrets about their administration.


ELLSBERG (VOICEOVER): The hundreds of thousands we were killing was unjustified homicide, and I couldn’t see the difference between that and murder. Murder had to be stopped.

NEWS PRESENTER: This weekend, portions of a highly classified Pentagon document came to life for all the world to see and brought cries of outrage from Washington.

RICHARD NIXON: We got to get this son of a bitch.

NEWS PRESENTER: A name has now come out as the possible source of the Times‘ Pentagon documents. It is that of Daniel Ellsberg, the top policy analyst for the Defense and the State departments.

ELLSBERG (ON CAMERA): I am prepared to answer to all the consequences of these decisions.

ELLSBERG (VOICEOVER): Henry Kissinger said that Daniel Ellsberg was the most dangerous man in America and he had to be stopped.


ELLSBERG: The Pentagon papers mainly dealt with the Democrats before him. It also actually dealt with the Nixon and Eisenhower administration earlier. But Nixon didn’t worry about that. That was old history. So he was glad to have the information come out about the Democrats. What he worried was that I had information beyond the Pentagon papers, which I did, but not as much as he feared. And he feared that I would put out information about his nuclear threats against North Vietnam, about his plans to mine Hai Phong, to expand the war in general, renew the bombing of North Vietnam, which in fact I did know about, but I didn’t have documents to prove it. To keep me from putting those out he sent people into my former doctor’s office to get information to blackmail me with. I was overheard on warrantless wiretaps. A CIA profile was done against me in a period when it was still against the law for the CIA to operate domestically against an American citizen. Now all those things are legal, by the way, under the Patriot Act and other acts. And he did one other thing that isn’t fully recognized as legal yet: he sent a team of CIA assets up to incapacitate me totally on the steps of the Capitol. I say yet because Obama has claimed the right to assassinate American citizens abroad, as it’s come out, like Anwar al-Awlaki. And, actually, since the war on terror is global, it’s not clear at all that there’s a restriction against doing it in the United States if necessary. He’s claimed, in other words, the right to do what Nixon did covertly. And Nixon faced impeachment because of that. So when my trial was ended, the next step was that Nixon was facing criminal charges on these things investigated by the impeachment committee, and he resigned rather than be impeached. And that actually did help shorten the war. So those were the efforts. But as a result, there never has been a Supreme Court ruling on whether the charges that were raised against me, and now Bradley Manning, the civilian charges, are constitutional. The one case that led to a jury conviction was appealed up to the Supreme Court, but they denied [inaudible], they denied taking it. And a couple of other cases have led to guilty pleas. Other cases have been dropped, like AIPAC. So no case has actually reached the Supreme Court for them to say that it’s constitutional to put this much information outside the realm of public discourse and outside the press. By this much I’m talking about the vast amount of classified material. And by earlier appreciation of our constitution, it was always predicted the Supreme Court would find that unconstitutional. You can’t be as confident about the current Court.

JAY: What’s happening with Bradley Manning now?

ELLSBERG: Manning is still being held absolutely unconscionably in what they call prevention of injury [inaudible] not necessary as far as the prison psychologist has said, which means being interrupted every five minutes to respond during the day, having no exercise in his cell for 23 hours a day. The rationale for that is pretty thin. His physical condition is deteriorating under that. He gets one hour a day to do figure eights in a closed office, essentially. And no sheet or pillow–after all, he might commit suicide with those. So in other words, they’re using every method, I would say, short of waterboarding to break him down and get him to say, I would guess falsely, but false or true, accusations against Assange which will help them in their prosecution of Assange if they can get him. So it’s torture, in a word. The isolation that he’s been subjected to for the last seven months now has been–it’s not obvious to a layman. We’re so familiar with that being–people being subjected to that. We’re not really aware, I think, of how many psychological studies have definitely identified that as torture.

JAY: Now, how do we know this is happening to him?

ELLSBERG: How do we know? They admit it, basically. They just say, oh, it’s ordinary treatment for national security prisoners. How many national security prisoners they have at Quantico I’m just not sure. I’ve waited 40 years for a national security prisoner like this one to turn up who said, I’m willing to go to prison for life or even be executed because, he said, this was information the public needed to know, it should not be sequestered in some safe in DC. He said the public needed this to be a democracy and to change conditions that he understood to be atrocious, atrocities in Iraq, including turning over hundreds and hundreds, thousands, perhaps, of people to what we knew would be torture, and tortured considerably more than he’s been subjected to. It was clearly illegal. WikiLeaks has revealed this, under Obama in 2009, that Obama’s administration was clearly violating the law in neither stopping the torture of prisoners that we were turning over or investigating it. The WikiLeaks shows that the orders went out again and again and again: do not investigate further. That’s an illegal order, plainly. It’s our international obligation to investigate any credible allegation of torture. So, strictly speaking, Obama’s own officials, or even he himself, is subject to questioning here about clear-cut violations of the law. That wasn’t true with the Pentagon Papers, by the way. They were three years old at the time that they were released, the most recent of them. They didn’t deal with the Nixon administration. There weren’t any clear-cut criminal violations they revealed then in the way this is. So I can see why Obama is particularly sensitive about these releases.

JAY: Thanks very much for joining us.

ELLSBERG: Thank you.

JAY: And thank you for joining us on The Real News Network.

End of Transcript

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Daniel Ellsberg is a former US military analyst employed by the RAND Corporation who precipitated a national political controversy in 1971 when he released the Pentagon Papers, a top-secret Pentagon study of US government decision-making about the Vietnam War, to The New York Times and other newspapers. His recent book is entitled, The Doomsday Machine: Confessions of a Nuclear War Planner.