WHAT IF DANIEL ELLSBERG HADN’T BOTHERED? HEIDI KITROSSER* INTRODUCTION In his book, Secrets: A Memoir of Vietnam and the Pentagon Papers, Daniel Ellsberg recounts the aftermath of a 1969 New York Times story regarding Ellsberg and five of his colleagues at the RAND Corporation.1 The six had sent a letter to the Times calling for complete withdrawal of U.S. forces from Vietnam. The result was a story headlined “six RAND experts support pullout: back unilateral step within one year in Vietnam.”2 The response within RAND to the letter’s signatories was almost entirely negative. In a series of inter-office memos, RAND employees lamented that the letter could jeopardize RAND’s longstanding “contractual and confidential relationship with the Defense Department.”3 One wrote to the signatories: “while you may feel strongly enough to lay your own jobs on the line, you do not have the right to lay mine there as well.”4 Another wrote that the signatories had “unleash[ed] a torpedo so unerringly as to strike at least glancing blows on your largest and most faithful clients, your employer, and your fellow researchers simultaneously.”5 While Ellsberg resigned from RAND before going on to leak the Pentagon Papers (“Pentagon Papers” or “Papers”), the other signatories had intended to stay on. However, due to blowback from the letter, one signatory was told to find another position while the others reportedly hung “‘on to [their] jobs by [their] fingernails.’”6 Of course, the professional and personal risks that the signatories took paled in comparison to those that Ellsberg went on to take in secretly photocopying and leaking—first to members of Congress and then to the New York Times and other members of the press—the Pentagon Papers, a classified history of the Vietnam War that the Defense Department had commissioned. Ellsberg has said that he believed that he was likely to be incarcerated for the rest of his life for leaking the Papers.7 He was indicted and tried, although the case was eventually * Professor and 2011-12 Julius E. Davis Professor, University of Minnesota Law School. Thanks to Gerard Magliocca for inviting me to participate in this Symposium and to the participants and the Indiana Law Review editors for making it a great event. Thanks also to Jan Kreuscher and to Coleen Rowley for generously sharing their thoughts and recollections on Daniel Ellsberg, the Pentagon Papers, and related matters. 1. See generally DANIEL ELLSBERG, SECRETS: A MEMOIR OF VIETNAM AND THE PENTAGON PAPERS (2002). 2. Id. at 314 (emphasis omitted). 3. Id. at 318. 4. Id. 5. Id. 6. Id. at 320. 7. Id. at 303-05. 90 INDIANA LAW REVIEW [Vol. 45:89 dismissed due to a string of government misconduct.8 The government had suppressed evidence, burglarized the office of Ellsberg’s psychiatrist, illegally wiretapped Ellsberg’s conversations, and held secret discussions with the judge trying Ellsberg’s case about the judge’s possible appointment as FBI Director.9 Apart from the potential for prosecution and imprisonment, Ellsberg put at risk his future income, potentially impacting not only himself but also his two children and his ex-wife to whom he provided child support and alimony payments.10 He also put at risk the status and access that came with being a respected former Pentagon and State Department analyst who had spent two years in Vietnam and had advised Former Defense Secretary Robert McNamara and National Security Advisor Henry Kissinger.11 I recount these risks to highlight how much easier it would have been for Ellsberg simply not to bother. How many of us, in Ellsberg’s shoes, would have said to ourselves “I just can’t.” But Ellsberg did bother. While still at RAND, as one of a handful of people with authorized access to the full, roughly 7000- page contents of the Pentagon Papers,12 Ellsberg and his former RAND colleague Anthony Russo, spent nights and weekends copying the Papers on the (agonizingly slow by modern standards) photocopy machine at a business owned by Russo’s friend.13 Ellsberg then contacted several members of Congress, hoping to find one who would hold hearings on the Papers, or enter them into the Congressional Record. When these efforts failed, Ellsberg leaked the papers to Neil Sheehan of the New York Times. Ellsberg also saw to it, when the government sought to enjoin the Times, that the Papers were made available to other publications in order to frustrate attempts to restrain publication.14 So Ellsberg bothered, as did Russo, who was tried along with Ellsberg and whose case was dismissed on the same basis as Ellsberg’s. But what difference, if any, did the leak and subsequent publication of the Pentagon Papers make? In exploring that question, this Essay takes some liberty with the topic—“constitutional counterfactuals”—of this symposium. Despite this author’s vast enjoyment of several classic movies and television episodes featuring parallel worlds,15 this Essay does not build a counterfactual universe in 8. See id. at 455-56. 9. See, e.g., id. at 444-56; INSIDE THE PENTAGON PAPERS 201 (John Prados & Margaret Pratt Porter eds., 2004); SANFORD J. UNGAR, THE PAPERS & THE PAPERS: AN ACCOUNT OF THE LEGAL AND POLITICAL BATTLE OVER THE PENTAGON PAPERS 8-10 (1989). 10. See, e.g., ELLSBERG, supra note 1, at 308-09. 11. See, e.g., id. at 227-41, 343-51; INSIDE THE PENTAGON PAPERS, supra note 9, at 4-6. Indeed, President Nixon’s White House chief of staff H.R. Haldeman recounted that “Ellsberg had been one of [Kissinger’s] ‘boys.’” MARK FELDSTEIN, POISONING THE PRESS: RICHARD NIXON, JACK ANDERSON, AND THE RISE OF WASHINGTON’S SCANDAL CULTURE 150, 152 (2010). 12. See ELLSBERG, supra note 1, at 244-45, 289, 304; see also Hedrick Smith, Vast Review of War Took a Year, N.Y. TIMES, June 13, 1971, at 1. 13. ELLSBERG, supra note 1, at 290-91, 295, 299-302. 14. See id. at 326-28, 331-33, 357-75, 384-406. 15. See, e.g., IT’S A WONDERFUL LIFE (Liberty Films 1946), available at http://www.imdb. 2011] WHAT IF DANIEL ELLSBERG HADN’T BOTHERED? 91 which Daniel Ellsberg never leaked the Pentagon Papers. It hints at such a world indirectly, however, by considering the difference that Ellsberg’s leak made in the universe that we do occupy. This Essay considers the impact of the Pentagon Papers leak on public and judicial attitudes toward secrecy-based assertions by the executive branch. I use the term “secrecy-based assertions” to cover two types of claims: claims that information must be kept secret to protect national security, and claims that the public would understand and bless the government’s actions if only the public could see the information that they are not permitted to see. This Essay argues that the Pentagon Papers leak and its aftermath helped set in motion a process of social learning—albeit a non-linear one with plenty of limits and setbacks—that continues to this day on the dangers of excessive deference to secrecy-based assertions by the government. With respect to assertions that the public would bless the government’s actions if only it knew what they know, the Pentagon Papers were widely viewed as giving lie to such claims as they related to the Vietnam War. The Papers’ revelations impacted Americans’ willingness to take on faith the honesty and competence of their government. Nor was this impact lost on the Nixon Administration, whose paranoia skyrocketed in the wake of the leak, contributing to a chain of nefarious activities that led to Nixon’s resignation and further catalyzed public distrust in government. This state of affairs led, among other things, to an influx of newly elected congresspersons championing restraints on the executive branch. Yet these events also gave rise to an influential and continuing backlash against restraints on presidential power, one that became most evident during the administration of George W. Bush and continues in the Obama Administration. As the backlash and the ongoing influence of its attendant constitutional claims illustrate, the impact of the Pentagon Papers leak on public, political, and judicial deference to executive power is hardly straightforward. Nonetheless, a key impact of the leak—indeed, the reason that it gave rise to so strong and continuing a backlash—is that it serves as a permanent, high-profile reminder that lies, mistakes, and incompetence may well lurk behind a government admonishment to “‘trust the President because only he [He?] knows the facts.’”16 Closely related to wariness toward government claims of expertise based on secret knowledge is another type of skepticism fostered by the Papers’ leak: Skepticism toward government claims that information must be kept secret in the name of national security in the first place. The impact of the latter, like that of the former, is hardly unmitigated. For example, case law is littered with instances before, after, and even during the period of the leaks and ensuing scandals in which courts defer heavily to national-security based pleas to keep com/title/tt0038650/; Star Trek, The Next Generation: Parallels (television broadcast Nov. 27, 1993), available at http://www.imdb.com/title/tt0708752/; The Twilight Zone: The Parallel (television broadcast Mar. 14, 1963), available at http://www.imdb.com/title/tt0734670/. 16. ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 331 (1973) (deeming this statement to reflect the mindset of the American people in the 1950s and 1960s). 92 INDIANA LAW REVIEW [Vol. 45:89 information secret. Furthermore, even as the Supreme Court refused to grant a prior injunction to prevent the Papers’ publication, a number of Justices suggested, in concurring and dissenting opinions, that post-publication punishment might be constitutional if authorized by statute.