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More Ellsberg: The Pentagon Papers and John Dean, Then and Now

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My guest today is "the most dangerous man* in America" whistleblower Daniel Ellsberg. When you released the Pentagon Papers to the New York Times, you knew that you could be facing life in prison. Luckily, that turned out not to be the case. But, if you were to have done comparable actions since the passage of the Patriot Act, they would have tossed you in prison and thrown away the key. That's a sobering, concrete example of where we are almost forty years later. Do you ever think about that?

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Good question. Actually, although (unknown to me and almost everyone else) the prior law was on my side in 1971-73, I came pretty close to spending 115 years in prison then. With good behavior, I would have gotten out (after 35 years) in 2008. It took a lot of luck, and a handful of individuals who told the truth (John Dean about the burglary, someone in the FBI about the electronic overhearing) to overcome the attempts of the president to bribe my judge with the directorship of the FBI.

And even before the Patriot Act, the trend of legal opinions--the terrible judgments in the Samuel Loring Morison case in 1984, an increasing disregard of legislative history which had weighed against using the Espionage Act as an Official Secrets Act--was against the chances for a future leaker of classified information. The Patriot Act itself didn't affect this situation that much. It doesn't include an Official Secrets Act--almost by oversight--though another 9-11 could almost surely get us one, even from Obama.

However, the Patriot Act and related legislation do have the effect of legalizing most of the actual crimes against me by Nixon. Sneak-and-peek entries and burglaries of a doctor's office, in search of information to use against a "terrorist suspect"? (i.e., someone like me who opposes and resists a president's terrorism). Legal, now. Warrantless wiretaps? Legal. Use of CIA against an American citizen? Legal.

So, a president doing to someone what Nixon did to me would now not be in danger of prosecution or impeachment for it; he wouldn't have to commit new crimes of obstruction of justice, including bribery (of Hunt) and incitement of false testimony, to cover himself. He could now do such things with impunity.

Even the effort to "incapacitate [me] totally," on May 3, 1972, is now authorized by President Obama against American citizens who are "suspects" outside U.S. territory. How long will it be before that's turned against citizens who obstruct presidential policy while they're in the States?

Even before 9-11 in 2001, but culminating in the days immediately after that, there was a virtual executive coup against the U.S. Constitution. And our constitutional law professor (a status still represented by John Yoo in Berkeley) in the Oval Office has taken not one real step (except for releasing a handful of Yoo's memos) to reverse that coup, which remains in effect, now with the bipartisan endorsement of Democrats both in Congress and the White House, putting it outside the realm of political controversy.

As someone has said, the regime of lawlessness under Bush has been succeeded by a regime of impunity, under Obama. With his refusal to prosecute or even investigate blatant crimes under Bush, Obama has actually decriminalized torture, without formally rescinding its blatant illegality.

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Nevertheless, the generally warm response to our film, The Most Dangerous Man, suggests that even after 9-11, a new whistleblower releasing the Pentagon Papers of Iraq or Afghanistan would get a favorable hearing from the public, and, possibly, even the courts. But the Plumbers working against the leakers from the White House--and I'm sure there's a major effort going on right now to find and neutralize whoever released the Eikenberry cables--would have a freer hand than before to pursue not only surveillance but covert action against the offender.

I certainly wouldn't call this progress. Last fall, you appeared with John Dean at a New York forum on government secrecy and the importance of whistleblowers. During the Nixon Administration, you were on opposing sides, so pairing the two of you would have been unfathomable. Can you tell our readers how you came to appear together?

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John Dean and I have been good friends for many years now. Our period of being on opposing sides--1969-72--ended when he broke with the Nixon Administration and began telling the truth about the crimes he had participated in, at Nixon's direction. His revelation of the break-in to my former psychoanalyst's office started the unraveling of the Office of the Presidency, because that crime was traceable to Nixon himself, unlike the more well-known crimes, like the Watergate break-in itself.

So, Dean's truth-telling was not only crucial to the dismissal of charges against me and Tony Russo, but much more importantly, it led ultimately to Nixon's resignation facing impeachment, which made the war endable nine months later. In fact, as I explained at the New York forum, his revelation on April 15, 1973, had the immediate effect of causing Nixon to rescind his recent directive to renew the bombing of North Vietnam, since he realized that he would be facing impeachment and didn't want an additional fight over this issue at the same time. So Dean spared Vietnam several more years of bombing, for which I give him great credit. (He wasn't aware of this effect himself, since he wasn't privy to Nixon's plans to renew the bombing).

Dean also revealed that evening that a major motive for his revelation at that precise time (and even a month later would have been too late, from the point of view that most concerned me, the renewal of the bombing) was that he felt, as a lawyer, that my rights were being violated by the continued secrecy about the break-in during my trial. He even felt that he would be guilty of a further charge of obstruction of justice, if he participated in it. So, his motives were, in this case, those of a classic whistleblower, another thing that brings us together.

Finally, I like him, a lot, and respect his insights on the law and the Constitution (both of which, of course, we both violated when we were officials).

Everything you've said underlines the tremendous value of whistleblowers, then and now. Yet, instead of reaping praise and appreciation, whistleblowers are constantly finding themselves under attack. In fact, the current Senate version of the Whistleblower Protection Enhancement Act (S 372) includes provisions that will make federal employees' attempts to blow the whistle even more difficult. The National Whistleblowers Center warns that this legislation is being "hotlined," poised to be passed without debate or a roll-call vote. If you think this is a very bad idea, here's an action link. Here's your chance to speak up.

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Joan Brunwasser is a co-founder of Citizens for Election Reform (CER) which since 2005 existed for the sole purpose of raising the public awareness of the critical need for election reform. Our goal: to restore fair, accurate, transparent, secure elections where votes are cast in private and counted in public. Because the problems with electronic (computerized) voting systems include a lack of (more...)

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