I just found this morning that [w:Daniel Ellsberg], the former Marine and Department of Defense official who leaked the Pentagon Papers in 1971, is speaking at the Stanford Law School, along with Charles Nesson, his defense counsel, and Laurence Lessig. The flyer also says that the “discussion will also cover the prior restraint recently leveled against Wikileaks.org in a federal court in San Francisco and the judge’s subsequent reversal of his own injunction.” I’ll try to live-blog what I can so keep checking back.
Here we go…
Lessig (LL), Ellsberg (DE) and Nesson (CN) on the dias. Ellsberg to tell the story of the PP and expound on free speech in the US.
CN: was a young law professor at Harvard in 1969. Vietnam was a widespread cause on campuses across the US as Iraq is not. Chicago 10 documentary was a great documentary about the 1968 Democratic convention that will give folks a feeling for the times that CN is speaking about. McNamara had generated a secret history/study (36 volume study starting in 1945) of Vietnam and SE Asia. This secret history showed all of the manipulation of the American public, the cynicism of the US govt. Ellsberg got a hold of this secret study, and tried to peddle it around. Finally, a DE was able to connect with a reporter at the NY Times. If Nixon administration had simply ignored it, it would’ve gone away. But Mitchell and other Nixon folks freaked out, tried to find the leaker and kept it in the news and in front of the public eyes. CN and DE would meet on bicycle in the Harvard tunnels so that the FBI couldn’t follow them. DE distributed volumes to a bunch of different newspapers across the US.
DE’s trial happened in L.A. prosecuted for theft of govt property. But he *copied* the papers, didn’t steal them. Then the govt tried to get him on the espionage act. The govt had a bunch of expert witnesses, admirals, generals etc. DE’s first witness was [w:howard Zinn]! Zinn told about the first volume like it was a bedtime story about Ho Chi Minh up in the hills, dreaming of freedom and democracy… Next witness was [w:Naom Chomsky]!! Eventually, the trial was thrown out.
DE: All charges were dismissed, but there was another case pending on the east coast. That case was eventually dropped because of how the L.A. trial went.
About 10 years after the trial, DE asked CN if he was guilty of the charges and CN said, “I don’t know.” Espionage laws (18 U.S.C. § 793 paragraphs D and E ? someone please fact check this!) are extremely confusing and contradicting and not understood by lawyers or judges around the country. DE speaks to many legal groups. DE’s trial was the first trial for a leak of classified documents. So there was no law on the issue. There is no official secrets act that criminalizes the unauthorized exposure of classified information. So there’s no basis in criminal law. An official secrets act would violate the 1st amendment. Congress DID pass an official secrets act in 2000, but Clinton vetoed it. It hasn’t been reintroduced since. Very few people know these 4 points. DE assumed that there WAS an official secrets act and that he had violated it. Copying public domain govt information would not in 1971 have been against the law. DE thought he would go to jail for copying 7000 pages of secret information.
LL: what would you have said to your wife?! DE: never give a former wife information that could put you in prison!! LOL!
DE: at the time his wife didn’t know that he might have been put in prison for his entire life. Whistle-blowing breaks up most marriages. There was a study done about this.
DE: I’m not a fan of APAC, they’re leading the country toward the abiss. But the 2 AIPAC employees are facing the same charges that Tony Russo (DE’s colleague) faced in 1971. AIPAC is effectively an Israeli lobby, a foreign agent. DE thinks the APAC case will be dismissed.
Our ability to be a real republican govt depends on unauthorized leaks! Torture went on against domestic and international laws and NSA domestic spying also went on for years and known by thousands of people. Neither of these were leaked for years. Bush administration kept this information from leaking because they told newspaper publishers that the next 9/11 would be on their hands. NYT by their reticence to leak the NSA story (they sat on it for a year!) gave the 2004 election to Bush.
We’ll be able to find out about the NSA wiretapping by the civil suits against telecom companies. And that’s why there’s such a push by the administration for telecom immunity. NSA is our Stazi (east germany) now. The NSA has turned on the American public for the last 6 years; that’s East Germany! When the NSA and the White House can know every private act, every journalist source, every political association, you don’t have a democracy. The real question is if the NSA can be pulled back! We’re in a very serious situation.
What should the law be? Should there be an official secrets act? No!! How many people should do what DE did and shouldn’t go to prison for it? There should be a “Pentagon Papers” out every week or two. Don’t wait until the bombs are dropping. Go to the press AND to Congress. Put out the documents that reveal that we’re being lied into war, that the same thing is happening with Iran, that the administration knew at the time that Iraq didn’t have WMD. Consider going to prison in order to stop a war. Give up your access to a president even if your name is Powell. Do this because the alternative is hundreds of thousands of deaths. Do the right thing! Changing of an administration is not going to change, we must change the law, change the climate, advocate to Congress.
Questions and Answers:
How did you get 7000 pages out of your office? DE had a safe in his office and could easily take classified documents. Because of DE, Rand employees have to sign in and read classified documents in a clean room.
What do you see as the proper role for secrecy in the govt? What would be legitimate to protect secrets?
DE: Of course the govt has some legitimate secrets. Secrets that should be kept from an enemy (i.e., the place and time of the Normandy landing). A real expert on declassification, William Lawrence, estimated that the amount of material that deserved protection was in the area of 2% of the information that’s classified. And .5% would need to be protected beyond a few months. The cost of the overbearing, pathalogical secrecy is Vietnam, Iraq, nuclear weapons… Most, 98% of secrets do not meet the requirements of damaging national security. Most of what the public needs to know is kept secret.
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