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Daniel Ellsberg: Whistle-Blowers Are Good for Democracy
Posted on Aug 29, 2013
But we come back to Obama. I think Obama’s interpretation is no, these are criminals… and he has decided to do what no previous president did ... which is to say prosecuted multiple whistle-blowers under the Espionage Act. He has brought seven indictments. ... Before him there were three presidents who each brought one … It’s an unprecedented campaign against whistle-blowing. And [Army Judge Denise Lind] is in a chain of command where she heard her commander in chief say [Manning] was guilty before he was even on trial. But I think he believes that, definitely. I have no question at all that Obama would not only have indicted me for the Pentagon Papers now ... even if it was before him, and I have no doubt that he would have sought a life sentence for me and believed I deserved it.
RS: The response of establishment, so to speak, is to try to separate you from these two fellows –
DE: No, I feel a very great identity with these two particular people, precisely because … they chose to put their lives at stake. Most leakers don’t put out enough material to make it sure they will be identified. ... These other people didn’t put out 700,00 cables as in Manning’s case or communications intelligence like Snowden or 7,000 pages like me, so there is a difference there. And we all had to expect that we would face a life sentence.
RS: Yeah. I’m just wondering in your mood, because I remember when you were going to court here in Los Angeles, and I knew you then. When you went to the trial of Manning, what was your emotional feeling?
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RS: For people who don’t understand this ... you also didn’t have an outcome in your trial on the merits.
DE: [The judge, Matt Byrne, was offered a job by Nixon to head the FBI]. And when we moved that his being offered that during the trial, was a grounds for dismissal, he dismissed that motion. And of course people also think, too, he dismissed it when it came out that [Nixon ordered the burglary of] my former doctor’s office. ... No, the trial went on wonderfully for another couple of weeks after that. It was only when it turned out that I had been overheard on warrantless wiretaps, which were then illegal.
RS: Well we have not had a legal test of your case.
DE: No, oh that’s right. Oh, now let me tell you something that is on that point that really is almost news; it’s going to come out. I was in touch about a year ago with David Treiman—I’ve talked to him several times—he was the [clerk for] Judge Byrne in the trial ... and by coincidence he had been a student at Harvard Law School of both Leonard Boudine and Charlie Nissan.
RS: These were your lawyers.
DE: My lawyers. Okay, so ... this was Byrne’s, I think it was literally his first case on the bench, so Charlie Nissan and Boudine made a motion to dismiss the Espionage Act charges on the grounds that the act was facially unconstitutional, [and] that applied to me or anybody else who disclosed information to the American public. Treiman told me that he wrote a memo to Byrne saying that, from his research on this, it was right. He looked up, of course, the references they were giving him in their brief, and they were right: the Espionage Act, which was the heart of the charges against me, should not only dismissed in my case but should be found facially unconstitutional. Meaning just out.
And his impression was that Byrne was very sympathetic, agreeable to this but did not want to start his legal career in his first case by calling a major law unconstitutional at the beginning of the case. So he said he would take that under advisement and would decide it based on the evidence in the trial. And that’s called an “as applied” challenge to the Constitution as opposed to a facial challenge. ... [T]he facial challenge says under all circumstances this law is unconstitutional because it threatens everybody. It chills free speech just by its existence because it presents people with a threat of being prosecuted, and that’s still true. The ... [“as applied challenge says that] under some circumstances it might be constitutional, but under the circumstances being presented, it’s unconstitutional. ... So he took it as an “as applied” challenge, and he would decide at the end of the case. Well since the case was dropped for reasons of these government crimes. ...
RS: But you’re referring to the break-in. ...
DE: Well there was a whole series, what he [Byrne] called the totality of circumstances, [to] offend a sense of justice ... [not] the break-in to the psychiatrist’s office alone—that had come in two weeks earlier—then they found a CIA profile that had been done on me against their charter, which forbade them to do operations on an American citizen. Then had also supplied the burglary with equipment, and then the warrantless wiretaps against me. And then the critical thing was they couldn’t find the records of the warrantless wiretaps.
The reason for that was that because they revealed illegal acts ordered by the president. [FBI Director J. Edgar] Hoover had kept them in his personal safe in his office outside the FBI system, which they were supposed to use to record wiretaps. And when Nixon realized that Hoover might use those taps as blackmail evidence against him, he ordered [one of his lawyers, Robert] Mardian to have the tapes removed from Hoover’s personal safe so that Hoover couldn’t use them against him. [William C.] Sullivan then, the [FBI’s] number-two man who wanted to replace Hoover, then stole the files from Hoover’s personal safe and gave them to [Nixon aide] John Ehrlichman, who kept them in a safe in the White House.
So, at the point ... Byrne suggested to my lawyers that they might want to reopen the brief for dismissal of the case. And we had a big discussion then as to whether we should or should not go to the jury. And of course, had we gone to the jury then if I’d been found guilty then, well then he could still have said the charges were out on grounds of unconstitutionality. We didn’t know he was entertaining that possibility. ... And if Byrne had followed [Treiman’s] advice ... that would have settled that for the future. Or, if on the contrary, I had been found guilty it could have gone up to the Supreme Court, and at that point with [Hugo] Black and [William O.] Douglas and some other very good First Amendment people on the court at that time, the chances are likely that they would have found it unconstitutional. Now that is less likely now –
RS: Switching from you and Snowden and Manning to Julian Assange. He is really–
DE: Who is more in the position of say, the New York Times –
RS: Exactly what I was going to say, that he is actually the publisher, and that confuses people about these cases because in fact he has a very strong position. I mean –
DE: Yeah he would have, if Bill Keller and others of The New York Times were willing to say that he was a journalist. Keller said, “He’s not a journalist by any standard that I know of,” which is a stupid thing to say, which is just trying to clear The New York Times from the grand jury investigation. …
RS: But clearly Glenn Greenwald, Assange fall into, in the modern publishing environment –
DE: Well, Assange is a publisher and Greenwald is a journalist. Up ‘til now a columnist and now an investigative journalist.
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