First Amendment

Pentagon Papers Leaker Daniel Ellsberg Sees Parallel in Disclosure of Wiretap Program

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The man who leaked the Pentagon Papers to the New York Times in 1971 is still eager to expose government secrets.

Daniel Ellsberg told an ABA Annual Meeting panel today that he disclosed the 7,000-page study of the history of the Vietnam War in hopes that President Richard Nixon could use it to blame the conflict on Democrats and quickly end U.S. involvement.

“It was a life-and-death matter, and that was worth going to jail,” he said. His action resulted in a landmark 6-3 U.S. Supreme Court decision in 1971 that held the government could not prevent the Times from publishing the papers because it had not met its heavy burden of proof. Ellsberg avoided conviction; the judge dismissed the case in part because he was approached about becoming FBI director as the prosecution was pending.

Ellsberg remains feisty, if his conduct on the panel is any judge. As the discussion drew to a close, he sparred with the lawyer seated next to him, Robert Deitz, who was general counsel of the National Security Agency following the Sept. 11 attacks. Even as the moderator tried to step in, Ellsberg waved off the interruption and kept talking.

Deitz had approved the legality of a government intelligence program that wiretaps Americans’ phone conversations when one party is overseas and terrorism is suspected. The New York Times exposed the program after a year of debate about whether publication would jeopardize the operation.

Deitz criticized the Times’ decision. “When you disclose an ‘intel’ program, the value of it, if it doesn’t dry up altogether, it diminishes substantially,” he said. “I knew the facts of the case in a way the New York Times did not.”

Then Ellsberg jumped in. He questioned how Deitz could determine the program was legal when it did not comply with a statute giving a federal intelligence court responsibility to approve terrorism wiretaps. He also said details of the surveillance program have not been disclosed to the Senate Judiciary Committee—and they should be.

If government won’t come clean about the details, Ellsberg has a solution: Someone should leak them.

The ABA Section of Litigation was the primary sponsor of the program.

Annual Meeting 2008:

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