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Social Education 75(3), pp 138–141 ©2011 National Council for the Social Studies Looking at the Law and Byron White added in their Pentagon Papers’ opinions that they “would have no difficulty in sustaining convictions” under the Espionage Act for publication of the papers. In other words, the gov- Reuters/Andrew Winning Is Julian Assange an International ernment couldn’t stop the presses, but it could throw the journalists in jail for Version of Daniel Ellsberg and running them. No journalist ever has been charged under the Espionage Act, even though WikiLeaks the Modern Equivalent the language of the law is so broad that it would appear to encompass the posses- of the Pentagon Papers? sion and publication of classified informa- tion. Ellsberg was prosecuted under the Espionage Act and almost certainly would William H. Freivogel have been convicted; however, a judge dismissed the case because of prosecuto- rial misconduct surrounding a break-in at Ellsberg’s psychiatrist’s office by a White istory has placed the stamp of approval on the publication of the Pentagon Papers, Haiphong harbor or on invading North House “plumbers” unit seeking evidence Supporters of WikiLeaks founder Julian Assange cheer outside Westminster Magistrates Court in the top-secret history of the Vietnam War. If WikiLeaks editor-in-chief Julian Vietnam, Laos, or Cambodia. to discredit Ellsberg. London after he was given bail on December 14, 2010. Assange, wanted in Sweden for alleged sex crimes, is the target of U.S. fury over the release of secret diplomatic cables. HAssange is another Ellsberg, then it’s possible the website’s disclosures will be In addition, the documents contained Congress passed the Espionage Act in viewed over time as similarly in the public interest. derogatory comments that would be 1917 during the fearful times of World offensive to allies such as South Korea, War I and prior to the dawn of First of the Espionage Act” by showing that he an extremely strong position against whis- Ellsberg himself is ready to welcome papers that published the papers. Times Thailand, and Australia. U.S. officials Amendment jurisprudence. At the time intended to harm the United States. tleblowers who leak to the press. In January, Assange to the club, saying it is wrong editors were warned by their own lawyers have similarly worried that U.S. allies of passage, the Supreme Court had never One key question of fact is the extent the government arrested Jeffrey Sterling to categorize the Pentagon Papers leaks that they would go to jail if they published would be embarrassed by the WikiLeaks declared a law unconstitutional for violat- to which Assange directed the suspected in a suburb of St. Louis on espionage as good and WikiLeaks bad. But Floyd the documents. revelations. ing the First Amendment. leaker, U.S. Army Pvt. Bradley Manning, charges for apparently leaking informa- Abrams, who represented The New York Instead of trying to put Times reporters The Supreme Court ruled in 1971 that Abrams predicts that a prosecution to obtain particular documents. If Assange tion to James Risen of the Times. Sterling Times in the Pentagon Papers case, says and editors in prison, the Nixon adminis- the government could not stop the newspa- of a professional journalist under the directed Manning, then he could be com- reportedly provided information for a he knows Daniel Ellsberg and that Julian tration tried to halt publication, attacking pers from publishing the Pentagon Papers Espionage Act probably would violate plicit in Manning’s wrongdoing. chapter of a book Risen wrote on the CIA Assange is no Daniel Ellsberg. Abrams the First Amendment at its strongest point, or any other national security secret unless, the First Amendment as it has come to be detailing a botched intelligence operation pointed out in a Wall Street Journal its protection against prior restraints on in Justice Potter Stewart’s words, there interpreted in the past 90 years. But he’s Leakers Punished; Leakees Go Free against Iran’s nuclear program. op-ed article that there are important publication. was proof that disclosure would “surely not sure that the First Amendment would There is a bright line between the legal In arguing that Sterling was so dan- differences: When the case moved to the Supreme result in direct, immediate, and irrepa- protect Assange. He fears Assange could consequences for the government leakers gerous that he should be kept locked up • Ellsberg withheld the diplomatic vol- Court, Solicitor General Erwin Griswold rable damage to our nation or its people”— be the first self-proclaimed journalist who versus journalistic leakees. The law pun- until trial, the government maintained umes that were part of the Pentagon filed a secret brief listing 11 drop-dead an almost impossibly high burden for the could be prosecuted successfully under ishes the government employee who has that a government employee who leaked Papers, while Assange has leaked secrets contained in the papers. The gov- government. the Espionage Act and that could open promised to keep classified information to the press is more “pernicious” than thousands of diplomatic secrets; ernment claimed that disclosure could Twenty years after the Pentagon Papers, the door to prosecution of mainstream secret and then violates the promise by a traitor who sells secrets to a foreign • The Pentagon Papers disclosed endanger the lives of intelligence agents Griswold wrote in the Washington Post journalists. giving it to a reporter. But the law generally government. Leaking secrets to the press U.S. government wrongdoing, while and prolong the war, with the resulting that his warnings in the secret brief had Assange is a tempting prosecutorial has protected the journalist who receives helps all potential enemies, while selling WikiLeaks has mostly shown that the death of thousands more soldiers and proved hyperbolic. “I have never seen any target for both practical and legal rea- the leak and publishes it. them helps only one potential enemy, the U.S. position in secret is pretty much many prisoners of war. trace of a threat to the national security sons. Practically, it is easier to prosecute Mark S. Zaid, a Washington D.C. lawyer government argued. This argument runs the same as in public; Some of Griswold’s claims are more from the publication,” he wrote. a colorful but disagreeable character like who handles national security cases, says counter to conventional view that Ellsberg • Ellsberg sought to right the direction alarming than the claims made about So, with the patina of history, the pub- Assange than the editor of The New York the status of government whistleblower is something of a hero while Aldrich Ames of the county, while Assange seems the WikiLeaks disclosures, and some lication of the Pentagon Papers seems Times. Legally, the Espionage Act has “offers absolutely no legal protection what- is a traitor. to harbor ill will toward the United are strikingly similar. One secret in the incontestably correct. The publication been interpreted to require prosecutors soever and it doesn’t excuse the conduct. Kathleen Clark, an expert on national States. Pentagon Papers was the U.S. consider- affected public opinion about the war, dis- to prove that a person intended to harm The level to which someone is a whistle- security law at Washington University But it is easy to forget that the situation ation of a nuclear response if the Chinese closed government lying, was upheld by the United States. Abrams told NPR in a blower will have no impact on that person’s in St. Louis, worries that the government was not clear-cut in the spring of 1971, attacked Thailand. Another was a 1968 the Supreme Court, and did no harm. recent interview that because of Assange’s potential liability,” he says. is trying to vilify Sterling to cut him off when the Times began publication of the cable to Washington by then-ambassador comments about the United States, he In a recent Espionage Act prosecution from likely legal allies in the press. And Pentagon Papers. Then the verdict was out Llewellyn C. Thompson making predic- Court’s Forgotten Warning had “gone a long way down the road of that has received little attention in the she wonders if the government has the on Ellsberg, the Times, and other news- tions about a Soviet response to mining But it is often forgotten that Justices Stewart talking himself into a possible violation national press, the government has taken same strategy planned for Assange. Social Education May/June 2011 138 139 Obama Prosecutes More Leakers Ellsberg “took weeks to sneak out all On a Cambridge Porch The disclosure of the Pentagon Papers tutes to me reprehensible, unethical Discussion Questions Than Any President of the Pentagon Papers and copy them Abrams isn’t the only First Amendment revealed U.S. government lies. The dis- behavior…. 1. Does the press serve the national inter- The Obama administration has disap- and bring them back,” he said. By contrast, lawyer who sees a big difference between closure of the NSA warrantless wiretaps est when it reports national security pointed civil libertarians by filing more for Manning, or whoever obtained the Ellsberg and Assange. Mark Sableman, in 2005 disclosed possible government WikiLeaks’ Impact on Mideast secrets like those contained in the criminal prosecutions against leakers WikiLeaks documents, “all he had to do a media lawyer at Thompson Coburn illegality. Those justifications for publish- As time has passed since the original Pentagon Papers and WikiLeaks? than any previous administration. In was put a thumb drive into the computer in St. Louis, sees more differences than ing national security secrets are largely WikiLeaks stories on diplomatic cables, fact, Zaid says, it is more than all previ- and instantly download hundreds of thou- similarities between WikiLeaks and the absent from the WikiLeaks disclosures.

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