Supreme Court Likely to Endorse Obama's War on Whistle-Blowers
This revised version of the column published earlier this week clarifies some facts related to the history of the Espionage Act. Several sentences in the original article have been changed or deleted. The act had been used against whistle-blowers only three times before President Obama took office but many times in other espionage cases.
Totalitarian systems disempower an unsuspecting population by gradually making legal what was once illegal. They incrementally corrupt and distort law to exclusively serve the goals of the inner sanctums of power and strip protection from the citizen. Law soon becomes the primary tool to advance the crimes of the elite and punish those who tell the truth. The state saturates the airwaves with official propaganda to replace news. Fear, and finally terror, creates an intellectual and moral void.
We have very little space left to maneuver. The iron doors of the corporate state are slamming shut. And a conviction of Bradley Manning, or any of the five others charged by the Obama administration under the Espionage Act of 1917 with passing government secrets to the press, would effectively terminate public knowledge of the internal workings of the corporate state. What we live under cannot be called democracy. What we will live under if the Supreme Court upholds the use of the Espionage Act to punish those who expose war crimes and state lies will be a species of corporate fascism. And this closed society is, perhaps, only a few weeks or months away.
Few other Americans are as acutely aware of our descent into corporate totalitarianism as Daniel Ellsberg, who leaked the Pentagon Papers in 1971 to The New York Times and is one of Manning’s most ardent and vocal defenders. Ellsberg, who was charged under the Espionage Act, faced 12 felony counts and a possible sentence of 115 years. He says that if he provided the Pentagon Papers today to news organizations, he would most likely never see his case dismissed on grounds of government misconduct against him as it was in 1973. The government tactics employed to discredit Ellsberg, which included burglarizing his psychoanalyst’s office and illegal wiretaps, were subjects of the impeachment hearings against President Richard Nixon. But that was then.
“Everything that Richard Nixon did to me, for which he faced impeachment and prosecution, which led to his resignation, is now legal under the Patriot Act, the FISA [Foreign Intelligence Surveillance Act] amendment act, the National Defense Authorization Act,” Ellsberg told me late Friday afternoon when we met in Princeton, N.J.
Manning, whose trial is likely to begin in early August, is being held in a medium-security facility at Fort Leavenworth, Kan. He allegedly gave WikiLeaks more than 700,000 documents and video clips. One clip showed the 2007 Apache helicopter attack in which U.S. military personnel killed more than a dozen people in the Iraqi suburb of New Baghdad, including a Reuters news photographer and his driver. Manning faces 22 charges under the Espionage Act, including aiding the enemy, wrongfully causing intelligence to be published on the Internet, theft of public property or records, transmitting defense information, and fraud and related activity in connection with computers. If he is found guilty he could spend the rest of his life in prison without the possibility of parole. Juan Ernesto Mendez, the U.N. torture rapporteur, has described Manning’s treatment by the U.S. government as “cruel, inhuman and degrading,” especially “the excessive and prolonged isolation he was put in during the eight months he was in Quantico.”
The Espionage Act was used only three times for leaks before President Barack Obama took office. Ellsberg’s case was dismissed.
Obama, who serves the interests of the surveillance and security state with even more fervor than did George W. Bush, has used the Espionage Act to charge suspected leakers six times. The latest alleged leaker to be charged by the Obama administration under the act is John Kiriakou, a former CIA officer accused of disclosing classified information to journalists about the interrogation of Abu Zubaydah, an al-Qaida suspect. Julian Assange, the founder of WikiLeaks, which published the cables and video clips allegedly provided by Manning, is expected to be the seventh charged in a leak case under the act.
The Supreme Court has yet to hear a leak case involving the Espionage Act. But one of these six cases will probably soon reach the court. If it, as expected, rules that the government is permitted to use the Espionage Act against whistle-blowers, the United States will have a de facto official secrets act. A ruling in favor of the government would instantly criminalize all disclosures of classified information to the public. It would shut down one of the most important functions of the press. And at that point any challenges to the official versions of events would dry up.The Obama administration, to make matters worse, has mounted a war not only against those who leak information but those who publish it, including Assange. The Obama administration is attempting to force New York Times reporter James Risen to name the source, or sources, that told him about a failed effort by the Central Intelligence Agency to sabotage Iran’s nuclear program. Jeffrey Sterling, a former CIA officer, is charged under the Espionage Act for allegedly leaking information about the program to Risen. If Risen confirms in court that Sterling was his source, Sterling probably will be convicted. A Supreme Court ruling in favor of the Espionage Act in a leak case would also remove the legal protection that traditionally allows journalists to refuse to reveal their sources.
“Unauthorized disclosures are the lifeblood of the republic,” Ellsberg said. “You cannot have a meaningful democracy where the public only has authorized disclosures from the government. If they [officials] get control, if they can prosecute anybody who violates that, you are kidding yourself if you think you have any kind of democratic control over foreign policy, national security and homeland security. We don’t have a democracy now in foreign affairs and national security. We have a monarchy tempered by leaks. Cut off the leaks and we don’t even have that.”
The WikiLeaks disclosures — the first in 40 years to approach the scale of the Pentagon Papers — may, if Obama has his way, be our last look into the corrupt heart of empire. Those who have access to information that exposes the lies of the state will, if the Espionage Act becomes the vehicle to halt unauthorized disclosures, not only risk their careers by providing information that challenges the official version of events but almost certainly be given prison sentences.
Ellsberg has called on those with security clearances to release the modern version of the Pentagon Papers about the Iraq and Afghanistan wars. He said his only regret was that he did not leak the Pentagon Papers earlier. If the documents had been published in August 1964, he said, rather than 1971, he would have exposed the lie that the North Vietnamese had made an “unequivocal, unprovoked” attack on U.S. destroyers in the Tonkin Gulf. The fabricated attack was used by President Lyndon Johnson to get Congress to pass the Tonkin Gulf Resolution, which authorized the administration to escalate the war. Ellsberg said that there were intelligence officials who in 2002 could have exposed the lies used by the Bush administration to plunge us into a war with Iraq. The failure of these officials to release this evidence has resulted in the deaths of, and injury to, thousands of U.S. soldiers and Marines, along with hundreds of thousands of civilians.
“Had I or one of the scores of other officials who had the same high-level information acted then on our oath of office — which was not an oath to obey the president, nor to keep the secret that he was violating his own sworn obligations, but solely an oath to support and defend the Constitution of the United States — that terrible war [the Vietnam War] might well have been averted altogether,” Ellsberg said. “But to hope to have that effect, we would have needed to disclose the documents when they were current, before the escalation — not five or seven, or even two years after the fateful commitments had been made.
“Don’t do what I did,” he cautioned. “Don’t wait until a new war has started in Iran, until more bombs have fallen in Afghanistan, in Pakistan, Libya, Iraq or Yemen. Don’t wait until thousands more have died before you go to the press and to Congress to tell the truth with documents that reveal lies or crimes or internal projections of costs and dangers. Don’t wait 40 years for it to be declassified, or seven years as I did for you or someone else to leak it.”
The courage of an Ellsberg or a Manning is rare. It will become even more so in a state where the law is used as a vehicle to protect those who carry out war crimes and to imprison patriots for life. If the Supreme Court rules in favor of the government on any of these six cases, it will invert the law and plunge us into totalitarian darkness.
Obama, a constitutional lawyer, has a far better grasp of the dramatic erosion of civil liberties his administration is cementing into place than his hapless predecessor. Obama, however, dissembles with an icy cynicism. He assured the public in January that the National Defense Authorization Act (NDAA) would not be used to detain and hold American citizens without due process, although the act’s latest version, which became law this month, clearly states the opposite. And Ellsberg, along with Noam Chomsky and other activists, has joined me as a plaintiff in suing the president and Secretary of Defense Leon Panetta over the NDAA. We are scheduled to appear in the U.S. District Court for the Southern District of New York on March 29. When Obama was questioned in 2011 about the difference between the release of the Pentagon Papers and the cables turned over to WikiLeaks he answered: “Ellsberg’s material was classified on a different basis.”
“That’s true,” Ellsberg said ruefully in our conversation last week. “Mine were top secret. The cables released in WikiLeaks were secret.”