How the Leaker of the Pentagon Papers Tried to Get Prosecuted Near the End of His Life

In the last years of his long and remarkable life, Daniel Ellsberg, the disillusioned military analyst who leaked the so-called Pentagon Papers in 1971, wanted to be prosecuted. And he hoped I would help smooth the way.

The charge he coveted was misusing national security secrets under the Espionage Act, and his plan was to give me another secret document he had taken decades ago and kept without permission all along. He wanted to mount a defense in a way that would give the Supreme Court a chance to declare that law unconstitutional, as applied to those who leaked government secrets to reporters. It is the same law that former President Donald J. Trump is now accused of violating 31 times, albeit under very different circumstances.

Ellsberg’s 1971 revelation of the Pentagon Papers—a secret study of the Vietnam War that shows that a generation of military and political leaders had lied to the public—and its fallout left a mark on history that would last most of his life. has decided.

But buried in some obituaries were fleeting references to a 2021 episode in which he gave me a top secret document about the attempt by US military leaders to launch a first nuclear strike on China in 1958, accepting the risk that the Soviet Union would attack on his behalf would repay in kind from his ally, and that millions of people would die.

In examining his legacy, the scrutiny he tried to bring to the Espionage Act by making that revelation also deserves consideration.

“I will claim, if charged, that what I am doing — such as what I have done in the past — is not criminal,” he told me, arguing that using the act “to criminalize covert truth-telling in public interest” must be considered unconstitutional.

The government has several tools to deter and punish unauthorized disclosures to reporters and the public, and for most of American history it has not attempted to send speakers to prison. The Espionage Act has been around since World War I, but it wasn’t until the second half of the 20th century that the government began using it to indict lay people rather than spies – initially with little success.

In 1957, the Army took the Espionage Act charges to an Army colonel’s court-martial for giving information to reporters about a disputed missile program, but prosecutors dropped the charges. In 1971, the Justice Department obtained such charges for the first time in the case against Ellsberg and a colleague who had helped him, Anthony Russo. But a judge dismissed the charges, citing government misconduct and illegal evidence-gathering.

A decade later, the Reagan Justice Department tried again, filing an espionage charge against a defense analyst who had provided secret satellite photos of a Soviet shipyard to Jane’s Defense Weekly. He was convicted. But it was so strange and unfair that only one person had been sent to prison for an act that had been done routinely for decades that President Bill Clinton pardoned him in 2001.

However, beginning in the middle of George W. Bush’s administration and continuing under presidents of both parties, the Justice Department began to routinely go after speakers using the Espionage Act. The law carries a heavy penalty — 10 years per charge — and prohibits defendants from suggesting that juries acquit on the grounds that their disclosures were in the public interest. Most defendants enter plea deals to avoid the risk of lengthy sentences, precluding the possibility of appealing the constitutionality of using the law in such circumstances.

Ellsberg and I had been discussing the government’s accelerating application of the law in 2014 when I wrote about how Edward J. Snowden, a former National Security Agency contractor who leaked secrets about surveillance activities, had joined the board of a non-profit press freedom organization that Ellsberg helped found. (Mr. Snowden, who publicly embraced Ellsberg as a kindred spirit, lives in Russia as a fugitive on espionage charges.)

“The question – which hardly anyone realizes, I would say, is a question – is whether this application of the Espionage Act to people informing the American public, and not secretly a foreign power such as a spy, is constitutional” , he said. me. “The problem is now almost never raised. It wasn’t in my mind when I revealed the Pentagon Papers – I assumed I was violating the plain language of that law, as I had been warned. And I was.”

In the years that followed, more reporters’ sources faced allegations of espionage law. And in 2019, the Justice Department under the Trump administration crossed a new line by obtaining an indictment against WikiLeaks founder Julian Assange — not for leaks, but for soliciting and publishing leaks. The department under the Biden administration has retained those unprecedented charges; Mr Assange has delayed a trial by challenging extradition in Britain, but continues to lose appeals there.

It was against that background that Ellsberg called me on a sunny Saturday afternoon in the spring of 2021. It was then that I was watching a Little League game. I moved away from the low bleachers and lawn chairs to stay out of earshot of other parents.

Decades ago, Ellsberg said, he had done a second secret study based on internal government data, which he had not given to reporters at the time of the Pentagon Papers because it was on a different subject: when Communist Chinese forces shelled islands bordered by Taiwan. were checked. in 1958, which caused a crisis. It showed that the world was closer to nuclear war than the public should have known.

Was I interested in writing about it? I was.

In the weeks that followed, I carefully read the Taiwanese study and consulted experts on the history of the 1958 crisis. As I worked on my article, Ellsberg and I spoke repeatedly. He preferred to talk via video call from his book-packed home office in California. During a lengthy telephone conversation, his wife, Patricia, joined us.

Part of his motivation, he said, was renewed tensions around Taiwan. He said it was likely that Pentagon war planners were once again drawing up contingency plans to use nuclear weapons if China attacked Taiwan and it seemed that conventional weapons would not be enough to repel it. He thought the possibility of such a terrible move warranted public debate.

But another reason, he said, was that by openly confessing to keeping and distributing the secret document without permission, he hoped to be charged under the Espionage Act. He wanted to be a test case to argue before the Supreme Court the constitutionality of how the Justice Department has used the law to punish leaks.

The provision against unauthorized retention of national security secrets, he pointed out, is written so extensively that, on the face of it, it could also be used to discourage journalists, publishers, and even readers of a newspaper article about a classified matter that a spouse tells about or keeps. a clipping instead of handing it in to the authorities. Citing the chilling effect the creeping expansion of the law has on the information the public gets in a democracy, he expressed disappointment that the Biden administration had not dropped the espionage law charges against Mr. Assange.

“Obviously it’s overly broad and doesn’t just apply to people like me who had security clearance. Assange feels the weight of that now,” he said, adding: “For 50 years I’ve been telling journalists, ‘This thing was a loaded gun looking at you.'”

In short, at age 90, he was willing to risk the prison he had been spared at age 42. Ellsberg’s plan. The article was published and attracted some attention – but to his disappointment, no charges followed.

“I was looking forward to pleading in court,” he said an interviewer in March, after announcing that he had been diagnosed with pancreatic cancer. “This is before I knew my life would be shorter than I expected.”