Actually, among the twelve federal felony charges I faced in court between 1971 and 1973 -- with a possible total sentence of 115 years in prison -- "treason" was not included. What I had done clearly failed to fit the standards of the U.S. definition of treason, which is the single crime that is defined in the U.S. Constitution: "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Although Richard Nixon, out of office, commented to an interviewer that my truth-telling had given aid and comfort to the enemy, he studiedly declined to use the term "treason" (though that was clearly how he intended to be misunderstood) since I obviously did not "adhere" to the Viet Cong or to any foreign power.
The founders of our country put that definition in the Constitution, with its "only," in order to limit its application and to make it impossible for the Executive or Congress to expand its breadth without going through the amendment process. They were sensitive to this prospect because in the eyes of the British Empire our nation was founded by traitors, all of the Signers in 1776. They wanted to keep American presidents from thinking like George III, who said: "I desire what is right. Therefore, everyone who opposes me is a traitor."
Nevertheless, I am still widely perceived as a "traitor," a term used publicly about me by Vice-President Agnew and privately by Presidents Nixon and Reagan. An even wider number see me as having "betrayed" a trust, having broken a promise to keep secrets (which I did) and thus embarrassed my colleagues in two Democratic Administrations. (As former Vice President Hubert Humphrey reported in to the Nixon White House while the source of the leak was still in question: "No good Democrat could have released this study.")
My late friend Jim Thomson, a former White House official, once informed me that as a Harvard professor he had asked the entire incoming freshman class at Harvard in an orientation session in 1974, a year after my trial had ended, how many of them admired what I had done. Virtually all raised their hands. Then, he told me, he asked them, "How many of you would hire him?" Very few hands were raised.
After all, even if they agreed with and even applauded my judgment and behavior in this instance, I had ultimately demonstrated my willingness, my determined resolve, to rely on my own judgment and conscience when it came to revealing or concealing information, rather than the judgment or orders of superiors or social authorities. Nor had I felt absolutely bound even by my own earlier promises and commitments made in an earlier state of information and opinion.
Next time I acted that way, they might not agree with me, or their superiors might not. Moreover, I had set a dangerous example which might encourage others, who were equally well-intentioned but had poorer judgment about context and necessity, to reveal secrets when it was not so appropriate. Virtually all other whistleblowers have evoked the same response among their former associates.
The concern of all these people for their own future "effectiveness," leading to their distancing themselves from the whistleblower, has a realistic basis and is understandable, in any case inevitable. But its validity, the necessity for it and the appropriateness of it, depends partly on an estimate of the danger that such an example represents for society -- encouraging the possibility that others would act in future as I did with the Pentagon Papers, or Bradley Manning is accused of doing -- as compared with the danger that few or none will do so.
On its face, to "betray" a promise or a secret or a friend is bad, to be condemned and deterred, to be avoided, prevented or minimized. But who or what, exactly, did I "betray"? And was there not, to the contrary, a dangerous kind of betrayal involved in keeping the secrets I revealed, the kind of secrets I myself had kept earlier and that many others did at the same time and subsequently, including much secret-keeping going on right now?
Should those who approve of what I did under the particular historical circumstances understand those circumstances to be extraordinary, so that the justification for my secret-sharing was highly exceptional? Does the occasion for justified violation of the secrecy regulations on the scale of the Pentagon Papers arise only once every thirty or forty years? The present system of civilian secrecy was born about seventy years ago. The Pentagon Papers were released in the middle of that period, and it has taken another forty years for a disclosure of comparable size, the WikiLeaks War Logs. Is that about the right frequency?
Let me make a contrary estimate. I would say that there has been a comparably grave and potentially scandalous situation, justifying comparable large-scale revelation of internal, wrongfully-withheld documents, on the average of every couple of years during that period. (Often several at once). That is also true looking right around the world. In one country or another, if officials were acting appropriately as I see it, there would be a Pentagon Papers publication (if not in the country of origin, in another with a freer press, or perhaps now in WikiLeaks) every few months.
Given the frequency not merely of minor error and fraud but of outrageously dangerous, immoral or catastrophic policies that national secrecy systems conceal, revelations on the scale of the Pentagon Papers or the WikiLeaks videos or War Logs (or, say, Mordechai Vanunu's photographs revealing the surprisingly large scale of the clandestine Israeli nuclear weapons program) should be the rule, not the exception, in the world. That is true even if the truth-tellers had to expect extreme governmental and social sanctions, as they now do and no doubt always will.
This applies not only to revelations from within governments and their national security apparatus but for the corporate sphere. Thus, Merrell Williams, as a paralegal, copied and released 4000 pages (the same number I gave to the press) of Brown and Williamson documents to Congress and to the New York Times. These "Tobacco Papers" revealed a generation of guilty knowledge and criminal cover-up of carcinogenic and addictive effects of cigarets and deliberate promotion to minors that had contributed to the deaths of millions of people. The documents supported the whistleblowing testimony of former Brown and Williamson official Jeffrey Wigand and formed the basis for unprecedently successful class-action suits. Is tobacco the only industry that has been wrongfully concealing thousands of pages whose exposure would save lives and justify personal risk? (Think Vioxx, Ford-Pinto, asbestos, British Petroleum).
This is a call for more Vanunus, more Frank Serpicos, more Vil Mirzayanovs (who revealed the development of new nerve gases by his Soviet chemical weapons department, at the risk of prison), more Merrell Williams' and Wigands.
But beyond that it is a challenge to the secrecy systems, and to the culture of secrecy that sustains them, which make such extreme risk-taking behavior so frequently necessary and appropriate. "Abuse" of the secrecy system is not occasional and exceptional in any of these countries, democratic or otherwise. To a good first approximation, it is the system. In light of what we have come to learn of what is concealed by these systems and the type of policies that are encouraged and protected by the past and current prospect of reliable secrecy, violation of the existing rules should be the norm.
There might well be a Pulitzer Prize for "sources." Under current conditions, especially in the area of national security and classification, it could be given anonymously if necessary, to be received in the name of the source and passed on by the reporter or Congressperson who published the information. The purpose of such awards would not really be directly to influence the incentives to whistleblowers, for whom other considerations would overwhelm any thought of awards. It would be publicly to declare the legitimacy, importance, necessity, value of what the whistleblower does, to encourage a climate of norms and opinion which would make whistleblowing more thinkable, more doable, to officials and thus to encourage more of it: even if it never becomes much more safe from administrative and career sanctions.
Since 2004, the annual Ridenhour Awards (named in honor of Ron Ridenhour, the Vietnam War veteran who exposed the My Lai massacre) given by the Fertel Foundation and the Nation Institute have amounted to such recognition. In 2009, for example, the Ridenhour Truth-Telling Prize was awarded to Thomas Tamm, the former Justice Department official who was the original source to the New York Times in 2004 about the illegal warrantless-wiretap program of the National Security Agency under George W. Bush. (At the time of the award Tamm remained under investigation by the Obama Justice Department; they dropped the inquiry in the fall of 2010.) In 2010 that prize went to Matthew Hoh, who resigned his State Department position in Afghanistan to speak out against Obama's escalation there.