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Daniel Ellsberg’s Attorney Daniel Sheehan: Political climate more dangerous than ever for whistleblowers

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JAISAL NOOR, TRNN PRODUCER: Welcome to The Real News Network. I’m Jaisal Noor in Baltimore.

Nobel Peace Prize committee officials have received a petition with some 100,000 signatures that endorse awarding the Peace Prize to U.S. soldier Bradley Manning.

Here to discuss the significance of whistleblowers in U.S. history is Daniel Sheehan. Daniel Sheehan has litigated over a dozen historically significant American legal cases in the 20th century, including the Pentagon Papers case in 1971 and the Watergate case in 1973. His autobiography, The People’s Advocate: The Life and Legal History of America’s Most Fearless Public Interest Lawyer, was published this month.

Thank you so much for joining us, Daniel.


NOOR: So, Daniel, you worked as a lawyer on the law firm that helped The New York Times decide to publish the Pentagon Papers. Talk about that decision and what it meant for you and the historical significance.

SHEEHAN: Well, it was quite extraordinary. We were in the process of working on the United States Supreme Court decision to establish the right of journalists to protect their confidential news sources. The law firm where I was, the Cahill Gordon law firm on Wall Street in New York, were representing NBC News, because the NBC News journalist Paul Pappas had been the first one to assert this right, and it had gone all the way to the United States Supreme Court. So we were in the process of preparing the briefs at the United States Supreme Court not only for NBC News, but for a number of news media, such as The New York Times, Washington Post, CBS, and others.

And in that context I got to know Jim Goodale, who was general counsel and vice president of The New York Times. He brought the Pentagon Papers to us. Their law firm, Lord Day & Lord, refused to protect them and said that they were going to turn them in to the FBI if they didn’t give the papers back immediately. So Jim Goodale called me on the phone at the Cahill firm and came over to visit with us. And I convened the meeting with Jim Goodale and the lawyers at our law firm, Floyd Abrams and [dZin SaInm@n] and I, and we participated in the decision to actually publish the papers. And we had designed a defense for them under the First Amendment and a defense against any potential charge of espionage.

NOOR: So, Daniel, more than 40 years later, the Obama administration is carrying out an unprecedented crackdown on whistleblowers across the country and is going after journalists, spying on journalists, pressuring them to reveal their confidential sources. What’s your reaction to where press freedom and the freedom of whistleblowers has come to today?

SHEEHAN: Well, I think that there are two major factors that have played into making the time period that we’re in right now distinctly more dangerous than it was back in 1971.

The first of these, of course, is the 9/11 attacks. Subsequent to those attacks, the United States [inaud.] blindly went forward and enacted the Patriot Act, 95 percent of the members of Congress never having even read any of it, and voted that into place. And then they later enacted the National Defense Authorization Act. These are the two sets of statutes, along with the traditional Espionage Act, that is being used by the administration, the Obama administration, to try to harass journalists and to suppress sources.

Now, back in 1971, when the United States Supreme Court decided the Pentagon Papers case and The New York Times case, there were actually ten written opinions issued in that decision. There are only nine justices. So it’s the first time in history where there’s ever been ten opinions written by the court. So all nine justices weighed in. And you can tell from a close reading of those decisions that the concurring opinion of Justice Potter Stewart was actually dominant in that case. And he set forth a whole–half a dozen major criteria that had to be met by any statute that was going to be passed by Congress that was going to attempt to punish journalists or to punish people in the government who revealed information which turned out to be of great importance to the public interest of the American people. And none of those standards have been met by either the Patriot Act or the National Defense Authorization Act. So both of those statutes are clearly unconstitutional. So that’s one of the major issues that’s changed is the atmosphere around this issue since the 9/11 attacks.

The second major issue, of course, is the fact that since that point in time, some 83 percent of all of the federal judges in the United States federal judicial system have been appointed by either Gerald Ford of Richard Nixon or George H. W. Bush or George W. Bush. These appointments in the United States federal judicial system have filled the ranks of our courts with extreme right-wing reactionaries, many of whom come from the Federalist Society, an extremely reactionary judicial group of people who have a very aggressive, hostile attitude toward journalists and confidential news sources.

NOOR: And can we get your reaction to the conviction of Bradley Manning? He now faces up to 91 years in prison for leaking the WikiLeaks documents, hundreds of thousands of diplomatic cables.

SHEEHAN: Well, the fact of the matter is–you may recall that back in 1972, Daniel Ellsberg, who had been the source of the Pentagon Papers, who was also a contract employee such as Snowden, for example, and he was also a member of the military, where he obtained much of this information, was charged with espionage by the Nixon administration. But in that particular case, all of the charges were dismissed against Daniel Ellsberg because of the prosecutorial misconduct. In that particular case, not only did the Nixon administration burglarize the office of Daniel Ellsberg to try to get at his psychiatric files, but they also attempted to bribe the judge right in the middle of the case by offering him an appointment to the Court of Appeals. Those actions on the part of the government forestalled any type of a ruling on the application and applicability of the Espionage Act to what Dan Ellsberg had done.

Now, there is a case, a United States Supreme Court case, that’s called U.S. v. Gorin. And in that case back in 1946, a member of the United States military, a young lieutenant in the United States Navy, was charged with espionage for revealing the sailing schedules of the ships that were sailing in and out of Pearl Harbor. In that case he gave that information to British intelligence for the purpose of helping to coordinate their sailing schedules with ours. And he was indicted and prosecuted for espionage.

The United States Supreme Court ruled that that was an improper charge and an improper conviction, because he was able in that case to have access to the United States Supreme Court and to the Courts of Appeals, and what they ruled was that the Espionage Act is on its face unconstitutionally vague and over-broad. And so to attempt to apply it to any person for having revealed information to the national news media or in good faith to some other source, such as Gorin had, to the British intelligence people, to reveal it to a source that–he was not intending to reveal it to a foreign enemy for the specific intent of having that damage the United States–that that was declared to be unconstitutional if he was going to be convicted.

So what’s going to be extremely important here is to try to figure out how we can get this issue elucidated in a way in a federal court that can set aside these charges against him. And that’s what really has to be done.

The problem is that that now interfaces with this new reactionary United States Supreme Court. At least four of the justices on the present United States Supreme Court are so reactionary, actually, that they can be virtually depended upon to go along with United States government in whatever way they want to.

So we’re going to have to take a look at a couple of the swing votes. There’s going to be Stephen Breyer, and there’s–well, there’s going to be–actually, in this particular case, we’re going to have to look at Justice Kennedy, because Kennedy is probably going to be the swing vote in this particular case. So we have to look at that to try to figure out how this case can be framed in front of the United States Supreme Court so that with extremely reactionary judges, four of them, we can still have the old U.S. v. Gorin precedent confirmed by this court.

NOOR: And finally, Daniel Sheehan, our final question to you: if you had been Bradley Manning’s attorney, would you have done anything differently?

SHEEHAN: Well, I think that the actual turning over of the documents to a journalist, in that particular case with Julian Assange, and Julian Assange having gone to The New York Times and to the British newspaper to have them review these documents to determine what information should be revealed and what shouldn’t be revealed I thought was a very judicious thing to be done. It wasn’t as though Bradley Manning just put all of this information out, immediately out onto the internet. There was a whole dealing with major media to vet this information.

Now, that’s something that may need to be looked at in the course of a legitimate trial. The problem is that I don’t think that Julian Assange is going to be given a legitimate trial if he were to return, and I certainly don’t think that Bradley Manning was given a legitimate trial in front of a military tribunal. It’s important to remember: the old saying is is that military justice is to justice as military music is to music.

NOOR: Daniel Sheehan, thank you so much for joining us.

SHEEHAN: Thank you. Thank you. I appreciate the opportunity.

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


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DANIEL SHEEHAN‘s 40-year legal career is distinguished by his aggressive and successful work as a federal civil rights attorney. He graduated from Harvard Law School, where he founded the Harvard Civil Rights Law Review and later returned to obtain his PhD from the Harvard Divinity School. He was the Executive Director of the Christic Institute, as well as the Executive Director of Mikhail Gorbachev’s STATE OF THE WORLD FORUM. He is still active and currently lives in Santa Cruz, CA.