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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 ’ opinions that they “would have no difficulty in sustaining convictions” under the Espionage Act for publication

of the papers. In other words, the gov- /Andrew Winning Is 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 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 . 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 ’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 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 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 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. the leaks appear to be less of an informa- 2. Julian Assange calls himself a journal- ous administrations combined. In addition sands of documents.” Pentagon Papers. That raises the question of whether it is tion dump than originally thought. Bill ist though he makes no pretense of to Sterling, the administration has pros- According to Zaid, the greatest threat to “I think most people think of WikiLeaks enough to say that the WikiLeaks disclo- Keller, executive editor of the Times, objectivity and seems to want to make ecuted Pvt. Manning, former FBI linguist the press is not the record number of pros- as more of a real threat than the Pentagon sures are both fascinating and provide the wrote at length recently about the pains the United States look bad by leaking Shamai Leibowitz, former NSA contrac- ecutions of leakers, but the possibility of a Papers,” he wrote in an email correspon- American people with a lot more infor- taken by his editors to vet the documents potentially embarrassing secrets. Do Thomas A. Drake, and former State prosecution of Assange for the WikiLeaks dence. mation about U.S. diplomacy than they and to remove any names of people who you think he qualifies as a journal- Department contractor Stephen Kim. disclosures: had before. might be endangered. Also, initial reports ist? But neither Zaid nor Gregg Leslie, the The Pentagon Papers was history Dudman says yes: about a quarter of a million cables being legal defense director for the Reporters Prosecuting Assange would be a and the WikiLeaks concern current It makes no difference to me that the released were greatly exaggerated. The 3. Should professional journalists, such Committee for Freedom of the Press, terrible policy mistake … He’s not developments. The Pentagon Papers present leaks don’t reveal wrongdo- number is closer to 10,000. as those at , be thinks that the increased number of pros- a journalist like you (the author). But was leaked by an American former ing as did the Pentagon Papers. Both In addition, even though the diplomatic prosecuted for violating the Espionage ecutions of leakers means that Obama is he is an editor, he is a publisher. It government employee; WikiLeaks were important in widening public cables did not disclose U.S. government Act when they print national security any more intent on prosecuting leakers would be different if there were any seems like a renegade offshore knowledge and understanding of wrongdoing, they did show that U.S. secrets such as those in the Pentagon than his predecessor, George W. Bush. evidence that he was soliciting some- organization open to anyone, even vitally important matters. In both diplomats were aware of Mideast cor- Papers and WikiLeaks? The increase in the number of leak pros- one to obtain the information. But people deliberately seeking to harm cases, that is sufficient justification. ruption. The release of those cables may ecutions is partly due to technology, Zaid even that is slippery because there the U.S. At least through today’s eyes, have played something of a role in the 4. Was publication of the secrets in the says. It is easier to obtain information to are journalists who say, ‘can you get given Ellsberg’s historical respect- Leila Nadya Sadat, a professor in inter- remarkable popular uprisings in Tunisia Pentagon Papers more justified than leak and easier for the government to track me a particular document?’ ability, WikiLeaks seems dangerous, national law at Washington University and Egypt. the secrets in WikiLeaks because the leak. unpredictable, uncontrollable. agrees. In one cable published by WikiLeaks the Pentagon Papers showed that I personally agree that the value of shortly before the Tunisian uprising, U.S. the White House and top government Richard Dudman, a former St. Louis the information and its publication Ambassador Robert Godec wrote, officials had not been truthful about Post-Dispatch Washington bureau chief, way outweighs the government’s Whether it’s cash, services, land, the Vietnam War? is sympathetic to Assange’s disclosures. interest in secrecy. I was appalled property, or yes, even your yacht, Dudman was himself involved in obtain- that the major reaction to the President Ben Ali’s family is rumored ing the Pentagon Papers. When the Times casualties (published by) WikiLeaks to covet it and reportedly gets what it began running the papers, Dudman tried wasn’t distress at the number of wants. Corruption … is the problem to figure out who might be leaking them. deaths but outrage that the infor- everyone knows about, but no one William Freivogel is a journalism professor After putting out some feelers, Dudman mation was published. What does can publicly acknowledge. at Southern University Carbondale and a got an anonymous call suggesting he that say about our priorities? former editor at the St. Louis Post-Dispatch. He has received numerous awards for publications related send a reporter to a pay telephone in Publication of those and other cables to media law and public policies. Cambridge, Massachusetts. Dudman sent William A. Babcock, a journalism eth- may not have toppled the Tunisian or the late Thomas Ottenad to the phone ics expert at Southern Illinois University Egyptian presidents, but they certainly booth. From there Ottenad was directed Carbondale, sets a higher bar. “While worried another local despot. Muammar to another phone and eventually to the the Pentagon Papers case focused on the Qaddafi, who was revealed to have back porch of a house where he found historical conduct of the Vietnam War, a “bodacious blond nurse” as a travel a stash of the papers, which he hurried the recent case focuses on an on-going companion, remarked that WikiLeaks to St. Louis where they were eventually conflict,” he wrote in an email. “publishes information written by lying published. As such, there is a much higher ethi- ambassadors in order to create chaos.” Dudman wrote recently, cal bar to be cleared before publica- So, while WikiLeaks did not unearth tion, especially when publication U.S. government wrongdoing it helped I welcome the publication of the might place current individuals in reveal wrongdoing in the Mideast even WikiLeaks papers as a breath of harm’s way. Instituting an ‘informa- more quickly than the Pentagon Papers www.abanet.org/publiced fresh air that tells us a lot more about tion dump’ of ongoing information affected the Vietnam War. The content in this article does not necessarily represent foreign relations and foreign affairs of a sensitive nature without thor- the official policies of the American Bar Association, than do the official statements, with oughly vetting the content so that any its Board of Governors, the ABA Standing Committee their caution, concealment and fre- named individuals are unlikely to be on Public Education, or the ABA Section of Antitrust Law. quent hypocrisy. targeted by terrorists—this consti-

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