In the last years of his long and remarkable life, Daniel Ellsberg, the disenchanted military analyst who leaked the so-called Pentagon Papers in 1971, wanted to be prosecuted. And he hoped that I would help pave the way.
The position he coveted was mishandling national security secrets under the Espionage Act, and his plan was to give me another classified document that he had taken decades ago and kept without authorization all this time. He wanted to mount a defense in a way that offered the Supreme Court the opportunity to declare unconstitutional that law applied to those who leaked government secrets to journalists. It’s the same law that former President Donald J. Trump is now accused of violating 31 times, albeit in vastly different circumstances.
Ellsberg’s 1971 disclosure of the Pentagon Papers—a classified study of the Vietnam War showing that a generation of military and political leaders had lied to the public—and its aftermath left a stamp on history that defined most of his life.
But buried in some obituaries they were making references to a 2021 episode in which he gave me a top-secret document about the push by American military leaders to carry out a first-use nuclear strike on China in 1958, accepting the risk that the Soviet Union would take reprisals on your behalf. of 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 disclosure also deserves attention.
“If charged, I will affirm my belief that what I am doing, like what I have done in the past, is not a crime,” he told me, arguing that using the act “to criminalize classified truth in the public interest” should considered unconstitutional.
The government has several tools to deter and punish unauthorized disclosures to reporters and the public, and for most of US history, it did not try to send whistleblowers 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 prosecute leakers rather than spies, initially with little success.
In 1957, the military included Espionage Act charges in the court-martial of an Army colonel for giving journalists information about a disputed missile program, but prosecutors dropped the charges. In 1971, the Justice Department obtained its first such indictment in the case against Ellsberg and a colleague who had helped him, Anthony Russo. But a judge threw out 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 had provided classified satellite photos of a Soviet shipyard to Jane’s Defense Weekly. He was convicted. But it was so bizarre and unfair that only one person was sent to prison for an act that had occurred routinely for decades that President Bill Clinton pardoned him in 2001.
However, beginning in the middle of the George W. Bush administration and continuing under presidents of both parties, the Justice Department began routinely going after whistleblowers using the Espionage Act. The law carries a stiff penalty, 10 years on a count, and defendants are prohibited from suggesting that juries acquit them on the grounds that their disclosures were in the public interest. Most defendants accept plea deals to avoid the risk of lengthy sentences, excluding the opportunity to appeal challenging the constitutionality of the use of the law in such circumstances.
Ellsberg and I had discussed the government’s expedited use 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. director of a non-profit organization dedicated to freedom of the press. organization that Ellsberg helped found. (Mr. Snowden, whom Ellsberg publicly embraced as a kindred spirit, has been living in Russia as a fugitive from Espionage Act charges.)
“The question, which almost nobody realizes, I would say is a question, is whether this application of the Espionage Act to people who are informing the American public, not secretly informing a foreign power as a spy, It’s constitutional,” he said. me. “The subject almost never comes up now. It was not on my mind when I released the Pentagon Papers; I assumed that I was violating the plain language of that law, as I had been warned. And I was.”
In the years that followed, more reporter sources faced charges under the Espionage Act. And in 2019, the Justice Department under the Trump administration crossed a new line by obtaining an Espionage Act indictment against WikiLeaks founder Julian Assange, not for leaking, but for soliciting and publishing leaks. The department under the Biden administration has maintained those unprecedented charges; Assange has delayed a trial by fighting extradition in Britain but continues to lose appeals there.
It was in that context that Ellsberg called me one 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 to be out of earshot of other parents.
Decades ago, Ellsberg said, he had conducted a second classified study based on internal government records, which he had not released to reporters at the time of the Pentagon Papers because it dealt with a different topic: when Chinese communist forces bombed the islands. controlled by Taiwan. in 1958, triggering a crisis. He demonstrated that the world had come closer to nuclear war than the public had been allowed to know.
Were you interested in writing about it? Was.
In the weeks that followed, I perused the Taiwan study and consulted experts on the history of the 1958 crisis. While working on my article, Ellsberg and I talked repeatedly. She preferred to video call from his book-filled home office in California. In a long call, his wife, Patricia, joined us.
Part of his motivation, he said, was renovated Tensions over Taiwan. He said Pentagon war planners were likely again drawing up contingency plans to use nuclear weapons if China attacked Taiwan and it appeared conventional weapons were not enough to repel it. He thought that the possibility of such a dire step warranted a public debate.
But another reason, he said, was that by openly confessing to withholding and disseminating the classified document without authorization, he expected to be charged under the Espionage Act. It wanted to be a test case to bring to the Supreme Court the constitutionality of how the Justice Department has used the law to punish leakers.
The provision against unauthorized withholding of national security secrets, he noted, is written so broadly that, at first glance, it could also be used to charge journalists, editors, and even readers of a newspaper article on a classified matter that tell a spouse about or withhold a clipping instead of turning it over to the authorities. Citing the chilling effect that the law’s progressive expansion has on the information the public receives in a democracy, he expressed disappointment that the Biden administration had not dropped the Espionage Act charges against Assange.
“It’s clearly too broad and doesn’t just apply to people like me who had a security clearance. Assange now feels the weight of that,” she said, adding: “For 50 years I’ve been telling journalists: ‘This thing was a loaded gun looking at you.’”
In short, at the age of 90, he was willing to risk the prison sentence he had been spared when he was 42. But as aggressive as the Justice Department has become in using the Espionage Act, apparently he did not want to participate in accepting Ellsberg’s plan. The article was published and attracted attention, but to his disappointment, no charges were filed.
“I really wanted to argue in court,” he said. an interviewer in March, after he announced that he had been diagnosed with pancreatic cancer. “This is before I knew my life would be shorter than I expected.”