The whistle-blower who helped end the Vietnam War discusses the greatest threat ever to free speech and a free press.
This week President Clinton considers whether to approve or veto a bill that would make it illegal to make unauthorized disclosures of classified government documents. If this law had existed in 1969 when I faced the question of giving the Pentagon Papers to Congress, I would have violated it. I would have provided the papers knowing that it was a clear violation of this law, and that I would spend time in prison.
As a contractor to the government at the Rand Corp., I had in my authorized possession 7,000 pages of a study that later became known as the Pentagon Papers. It was a top-secret history of U.S. decision making in Vietnam from 1945 to 1968. The war was still going on, and the same patterns of deception of Congress, deception of the public, violation of treaties and reckless disregard for the national interest and the lives of Americans by the Nixon White House that were documented in the study persisted. Thirty thousand American lives had already been lost, and millions more Vietnamese had died. I was trying to minimize the number of names that would ultimately be added to the Vietnam Veterans Memorial, so I gave the report to the Senate Foreign Relations Committee. Subsequently, that committee requested and was refused official access to the study by the Defense Department — four different times. Was I authorized to give it to the committee? No. Every page was stamped “Top Secret — Sensitive.” And no executive branch official would authorize provision of the study to Congress, even on a top-secret basis, although it was available to me at the private, nonprofit Rand Corp.
I was the first person in this country ever tried for revealing secrets to the American public, unless you count Nathan Hale, a very distinguished predecessor. I was brought to trial under existing laws that had never before been applied to disclosures to the press or public. Though I was not charged with espionage, I was charged under paragraphs in the Espionage Act, and was charged with theft and conspiracy. None of those charges had ever been applied to leaks before, and I faced 115 years in prison. But I was prepared to spend that amount of time in lockup for what I felt was an obvious reason: A war’s worth of lives was at stake. My own freedom was a lesser consideration.
I have never regretted my decision. By the time my trial was dismissed in May 1973 for governmental misconduct against me, Richard Nixon had contributed over 20,000 more names to the future war memorial. It might have been many more.
Prior to the anti-leak provision that is part of the Intelligence Authorization Act just passed by Congress, there had never been a law that made it a criminal act to put out information to the public that your superiors or your department in the government had not authorized you to release. Though England and many other countries have “official secrets” acts, until now the United States has not. And for a good reason that very few Americans are aware of: We have the glory of living in a country that has a First Amendment built on the belief that the people are sovereign, that government information belongs to them and that sovereignty can’t be exercised or government officials held accountable for their actions without people’s having access to all kinds of government information, including that which those officials would prefer that you not have. You can’t hold them accountable without being able to get information about their errors or their lies or their crimes or their reckless behavior — which they would do anything to keep secret and would never authorize you to have if they could withhold it.
The reason there have been only two prosecutions for whistle-blowing in this country — of which mine was the first in 1971 (the second was that of Samuel Loring Morison, who was convicted for leaking a reconnaissance photo of a Russian aircraft carrier in 1985 in an effort to show that our government was ignoring a Soviet aircraft carrier buildup) — is not that the government has been unable to find out who publicized particular information. It’s that the Justice Department in successive administrations has understood that it didn’t have a law to prosecute with. Laws did exist that the Justice Department could interpret as applying to what I did or to other leaks, but the department always knew that it risked the likelihood that those laws would be found unconstitutional if it ever tried to apply them.
Most people who have leaked government information were under the mistaken impression that there was such a law. And that false belief, combined with all the career disincentives to putting out information your bosses don’t want you to put out, has kept people’s mouths shut, even when they knew that crimes were being committed or the public was being misled. Potential whistle-blowers feared losing their security clearance, their job, their access, their self-importance, their whole identity.
Attorney General Janet Reno says she’ll limit the new law to documents and things that are properly classified. But by the standards that existed when I released the Pentagon Papers and that exist now, nearly every page of the papers was properly classified. There were very few pages that would not have been routinely and, on reflection, carefully determined to be classified. These were Joint Chiefs of Staff plans, estimates, presidential memos — the kind of stuff that’s always regarded as the most sensitive material. But I felt that Congress needed that information, that in the absence of it 30,000 Americans had been lied to death and many more deaths lay ahead.
Moreover, once the material was made available for public scrutiny, not one line of the thousands of pages was ever convincingly demonstrated to have damaged national security or cost an American life once it was released. That’s a good indication of what percentage of the billions of pages currently locked up in safes truly deserves protection from public discourse: probably less than 1 percent of it.
Unauthorized disclosure is essential to the working of a republic, to its very existence. A leader who has the power to decide entirely on pain of prison what information the public can know about what the state or leader has done or intends to do is not the president of a republic: He is a king, a monarch. He has the ability to take this country into wars on his own decision, telling the Congress and the public only exactly what is needed, true or false, to get them behind him and move into war. That is the property of kings that our Founding Fathers were precisely trying to avoid when they gave the power of war and peace exclusively to Congress and when they wrote the First Amendment.
James Madison, the author of that amendment, wrote: “Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives. Popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy — or perhaps both.”
I hope and expect that the Supreme Court will find this law unconstitutional. Certainly, by all past interpretations of the First Amendment, such a law is clearly unconstitutional, and that’s why no Congress has ever gotten to the point of passing it before, even though several administrations have asked for it.
How did this Congress come to pass the measure? My best guess is that a Republican Congress wanted to admonish the Clinton administration for allegedly being lax about security at Los Alamos, N.M., and elsewhere. But Clinton shouldn’t be let off the hook here. For the president to have allowed this legislation to get so far (with the approval of his Justice Department) — legislation he must now decide whether to sign — represents an unconscionable breach of his responsibilities as president of a democratic republic. It also serves as a terrible black mark for Reno, who, in her support of the bill, shows that she lacks an understanding of the basic requirements of a democracy.
If the bill is approved by Clinton, I hope that other people will violate the law under the same circumstances that I did. It took the unusual circumstance of the Vietnam War to bring me to that point. Those precise circumstances won’t arise very often, I hope, but what will arise are other situations where many lives are at stake, like the radiation effects of past government nuclear testing and production that we found out about through unauthorized leaks. Or the foreign lives at stake in our support of covert actions abroad, during dictatorial regimes like that of former Chilean leader Augusto Pinochet or the death squads that ravaged El Salvador and Guatemala. Or the Iran-Contra affair, with its illegal funding of terrorists in Nicaragua and of arms sales to Iran.
There are already too few people willing to give up their careers as did Richard Nuccio, who was stripped of his security clearance and had to leave his position at the State Department after telling then Rep. Robert Torricelli, D-N.J., the name of a Guatemalan torturer on the CIA’s payroll. For that, his career was ended by, of all people, former CIA director John Deutch, who, ironically, is now under investigation himself. But Nuccio doesn’t regret what he did. Of course, he did the right thing and should not have been punished in his career for that. But if you add to that, under this law, the likelihood of actually going to jail, there will be fewer Nuccios and fewer whistle-blowers at a time when we need them as much as, if not more than, ever.
The administration claims that the law against unauthorized disclosure will not be used against the media, but that’s a transparent and dangerous deception.
Why aren’t newsmen called before grand juries routinely to identify the sources of the leaks they publish every day of the week? People may say it’s because of our extreme regard for the First Amendment, but that’s ridiculous. If Congress were so scrupulous about the First Amendment, it wouldn’t have passed this law.
If Clinton approves this bill, for the first time the government will be able to say that a crime has been committed when a leak has occurred and, therefore, if you have information about who committed that crime, you must tell the grand jury and the country who the person is, on pain of jail for contempt if you refuse. Congress and the White House can say that they have no intention of doing that with newsmen, but the promise could not be more worthless. Newsmen will be called in front of grand juries and asked who gave them information. Many will refuse to say and will go to jail — a respectable and worthy act of civil disobedience. But after a number of newsmen have languished in jail on contempt charges, the willingness by newsmen to accept a classified document or information will drop very sharply. As a result, we will know even less than we do now about our government’s plans and decision-making processes. The cost? More wars like Vietnam.
Clinton should and must veto this bill. He must demonstrate his awareness that the bill is unconstitutional, that the First Amendment is worth protecting and that he understands what it means to be the president of a republic.
I bet very few of the members of Congress who voted in support of this bill understood the implications of what they were doing — that they were essentially repealing our First Amendment in the name of so-called national security. In fact, nothing could be more dangerous to our national security than learning only what the government authorizes us to learn. (Besides, the disclosure of the most dangerous classified information — espionage, disclosures of nuclear weapons design, cryptological processes or names of intelligence agents — is already covered by suitably narrow criminal laws.)
Both Democratic and Republican presidents would like to be able to put whistle-blowers in jail, whether the information they disclose is classified or not. With this law, they’ll get their wish. If it were retroactive, it could be called the “We’ll get you this time, Ellsberg” law.
If Clinton does not veto this dangerous bill, one of his last acts in office will be to nullify the First Amendment, the very foundation of the American form of government. He will violate his oath of office to uphold the Constitution in a way incomparably more serious than anything with which he was charged in the impeachment proceedings.
If Clinton now thinks I should have gone to prison for releasing the top-secret Pentagon Papers, he can sign this bill in good conscience. If he doesn’t think so, he should veto it.
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Daniel Ellsberg is a former State Department and Defense Department official who leaked the Pentagon Papers in 1971. He is currently writing his memoirs.