Dec 10, 2013
Daniel Ellsberg: Whistle-Blowers Are Good for Democracy
Posted on Aug 29, 2013
RS: It’s interesting that you talk about war crimes and obligation to the law. The Nuremberg principle, which the United States gifted to the world, or codified for the world … in Article 4 … says that the idea that it was an order is not an excuse.
DE: Obeying an order is not an excuse … an illegal order.
RS: Yes. And that in fact you have an obligation to … disobey the order. So what you’re saying when you say Manning had knowledge of a war crime [is] had he not released that, he could have been judged guilty under the Nuremberg principle.
DE: Yes, it has to be a blatantly illegal order; obviously troops are supposed to give the benefit of the doubt to their superior officers, but there are cases like the video … where actually it is quite blatant, and, of course, the soldiers should have refused orders or the atrocities that were carried out.
DE: I was at one of the pretrial hearings and I was there for the first day of the trial. One of my problems though is that the acoustics were such in that little courtroom I could hardly hear anything and I wasn’t able to talk to Manning. I tried to at one point and was jerked out of the courtroom by two big, large guards immediately. …
RS: And you were actually free on—
DE: Oh, I was totally free during—from the day that I was arraigned … from that whole period of two years that I was under indictment, I was free to go to rallies, demonstrations, talk on the interview, and actually while the FBI was looking for me, I was on prime-time television with Walter Cronkite. ...
RS: Snowden was working under an NSA contract. What people forget about your case is that you also had a—
DE: Yes. I too—you know, Snowden made the point, very telling point, one of the things that he thought was wrong in the situation was that he, working for a contractor ... was one of a thousand people at least who had full access to the files of everybody going up to the president. And he said it was not right ... Well, in my case, I felt I’m reading material that the public should have and above all the Senate should have—I gave it to the Senate, but I gave it in the spirit [that] it’s not right that I as a contractor have access to the top secret history and that Sen. Fulbright does not, and when he asked for it, four different times from Secretary of Defense [Melvin] Laird, he was simply refused the information. He could only have gotten it through me.
RS: Now we should mention that Senator Fulbright from Arkansas was, in fact, the chair of the—
DE: He was the chair of the Senate Foreign Relations Committee. … So the Senate Foreign Relations Committee was not even able to get it on a classified basis, see. Laird [decided] it was not ... in the interest of the country for the Senate to have this information. Well, I thought it was ... And for people to say that this information Snowden put out, or Manning put out, could have been dealt with in some different way, are just totally off base. What Manning and Snowden were well aware of was that there was a cover-up on this information going up to the highest levels … Snowden did see … that Obama was not correcting these crimes and errors and unconstitutional action, so he felt he had to do it. Well, they were absolutely right; the idea that there was an alternative channel is simply false.
RS: This is a critical point because ... no one can deny that this information is useful to the American public becoming an informed public, which the founders obviously thought was the essential ingredient for a democracy.
DE: See, what else people are always saying was Snowden, or Manning, elected to give this information out. And of course they are ignoring when that comes out in the entire vast executive branch there’s exactly one elected person, or two when you include the vice president [who are] ... in the decision process ... who have actually been elected for this. And then the next question is, did we really elect them to lie us into a crime against the peace into an aggressive war and cover it up indefinitely, is that what we elected them to do? Is that within their legitimate right?
RS: What is a crime against the peace? ... What does that mean? Does that have legal—
DE: That’s the legal term under the U.N. for what used to be called war of aggression, and it’s a war; it means in a war initiated not in response to an attack or an imminent threat of attack and not authorized by the U.N. Security Council. And of course Iraq falls outside those requirements. ... [It’s] what was called at Nuremberg a crime against the peace ... , which carries within itself all the others that are associated with with war crimes, supreme crime.
RS: Let me just ask you a question—trying to understand Manning, understand Snowden—you were one of the best and the brightest, right? Use [writer David] Halberstam’s—
DE: Yeah, who came up with that phrase? Halberstam?
DE: Yeah. Although I might say in one conversation I had with [Sen.] Gene McCarthy ... he came up with that statement ... “You were one of the best and the brightest.” ... and I remember my answer to him: “We weren’t the best and the brightest.” I said, “Every one of our spouses had better judgment than we did. And our children.” And I said, “Yes, we were smart. But we lacked wisdom and foresight and scruples.” ... And McCarthy was taken aback at my saying that and then he said, “Well, that just about covers it.” And I said, “That’s right.”
RS: But I was using it in a sense of being credentialed and you, as opposed to Manning—they say, “Who is Manning? He’s just a lowly private and he dropped out and so forth. You really were up in that other level ... Kissinger attested that you were one of the really sharp people at Harvard—
DE: He even paid me the compliment of saying that I was the brightest student he ever had, which is compliment because I was never a student of his for one minute, so he chose to take credit for me.
RS: So my point is that the question is who are these people and why do they take these risks? And then there’s always the hunt to find some aberrant personality or something. And in your case, you know, it’s now come to be understood by many people ... that what you did was right—
DE: I faced the same charges as Manning. I would have gotten the same sentence as Manning if governmental crimes against me had not been revealed ... I do not believe that Obama thinks what I did was right ... [H]e said to people who were in favor of transparency who urged him to enact whistle-blower coverage for national security whistle-blowers, and… Danielle Bryan … from POGO [Project on Government Oversight] said he got very exercised at that point, and he said people who leak are criminal.
Now, actually that’s a very problematic statement from a constitutional point of view. It’s never been tested by the Supreme Court, and in my day, the leading scholar of information law, Melville Nimmer, did an amicus brief and he also an article in the Stanford Law Review which said the acts of which Daniel Ellsberg is accused either are not applicable under the Espionage Act [or] the Espionage Act should not apply to those. Or if it does, the Act is unconstitutional. And as Strong, Harold Edgar, Benno Schmidt were great scholars of this later, also said the act is on it’s face unconstitutional as applied to leaking, which was never the original intent of the people who passed that law. And [its] use against people who disclose information to the American public, like me or Manning or Snowden, is unconstitutional.
Now the Constitution hasn’t changed. It’s true that the legal climate has changed a great deal and the makeup of the Supreme Court has changed, but I think that argument is very sound. So I think the Espionage Act charges of which Manning was just convicted and prosecuted are unconstitutional. And the Supreme Court may or may not find that way. But I think they should.
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