Daniel Ellsberg: A Personal Remembrance of an American Hero
I was very saddened to learn of the passing of Daniel Ellsberg a few weeks ago. Though in our volatile and combative times, many journalists – and their sources – are exceptionally courageous, and often sacrifice their well-being for their profession and causes, Ellsberg was the unequaled model for such behavior. Quite simply, he was willing to give up his life and freedom for the chance that his actions would help bring about an end to the war in Southeast Asia that was causing the deaths of tens of thousands of Americans and millions of Asians.
Whether his leaking of the Pentagon Papers to The New York Times, and the Times’ subsequent publications, actually contributed to ending the Vietnam War is dubious. Ellsberg believed that informing the American people of the Government’s duplicity and lying about the war would hasten an end to American involvement, but as it was not until four years later that our country extricated itself from Saigon, a causal link between the dissemination of the Vietnam Archive, as it originally was known, and the de-escalation of the War would be hard to prove.
Indeed, in the end, the lasting import of the Pentagon Papers came not in its effect on foreign policy, but in the legal arena, where the litigation the Nixon Administration brought against the Times led to one of the two most influential decisions ever by the Supreme Court in the media law space. In resolving the historic tension between the Government’s interest in national security and the press’ First Amendment interest in informing the people, the Court concluded that for a prior restraint to issue, the Government must show that publication would “surely” result in direct, immediate and irreparable damage to the nation or its people – a test Nixon did not meet in the case.
But though Ellsberg’s goal of ending the War was probably not met by his actions, his courage and heroism in releasing the Papers cannot be overstated. He fully expected that by leaking highly classified documents to the Times and, when the federal district court stopped the Times from publishing, to other newspapers, he would be charged and likely found guilty of violating the Espionage Act. Yet he believed that, given the position he had in possessing the Pentagon Papers, it was his moral duty to attempt to stop the War regardless of the personal consequences.
While in the last decade, leakers such as Assange, Snowden, and Reality Winner have been compared to Ellsberg, their motives seem much less clear, their goals more questionable, and the purpose of their civil disobedience less worthwhile. Now perhaps I am biased because the quagmire Ellsberg was trying to –stop directly threatened my well-being – I ended up in the National Guard and Army Reserves serving in basic training, two weeks a year in summer camp and one weekend a month – but I avoided going to war overseas.
It is important to note that notwithstanding the Times’ success in the prior restraint case against it, Ellsberg himself, as he had feared, was criminally prosecuted – and he escaped prison for up to 115 years by the skin of his teeth. The Government by all accounts had a pretty open-and-shut case against him, but in a precursor to Watergate, the Nixon Administration and its plumbers broke into the offices of Ellsberg’s psychiatrist to get some dirt on him, illegally wiretapped his conversations, did not make required pre-trial disclosures to his lawyers, and, perhaps most heinously, offered the judge in the case – during the trial – the post of director of the FBI when J. Edgar Hoover either died or retired. As a result, the judge threw the case out, before it went to the jury, for prosecutorial misconduct.
At the MLRC Dinner in 2016 (which you might remember as the day after Trump’s upset victory over Hilary Clinton), where Ellsberg was honored with our William J Brennan Defender of Freedom Award, Ellsberg told me the dismissal was the happiest day of his life. And in his speech that evening, accepting our highest honor, he made the poignant point that sources were vital to the dissemination of information to the public, and that the media industry ought to fight for their protection as much as it sought protection for itself.
Since there were only a very limited number of people working on Defense Secretary McNamara’s project to put together an archive tracing American involvement in Vietnam, the Government had not had great difficulty either in identifying Ellsberg as the likely perpetrator or in finding him. Their job was made easier by the Times’ not keeping in touch with him after its receipt of the documents. Thus, Ellsberg was forever resentful that the Times did not give him advance warning of its publication, and thus did not give him an opportunity to plan a hiding strategy in advance. For its part, the Times said it feared continuing communications with Ellsberg because, while a heated debate was going on at the paper about whether to publish, it was worried about what Ellsberg might say and whether he might distribute the Papers elsewhere.
Ellsberg’s relationship with the Times after showing the Papers to its reporter Neil Sheehan was fraught for other reasons as well. When Sheehan died a few years ago, it turned out that Ellsberg said he only would show the Papers to Sheehan, but that he could not copy or retain them. Nonetheless, while leaving Sheehan in his apartment with them, he gave the reporter a key and left town. Whether because Sheehan thought this was a tacit permission to copy them, or because he knew he needed the actual copies to have a chance of convincing his editors to publish, or, as Sheehan said, the papers were the property of the people, Sheehan spent the weekend going to numerous copying stores all over Boston and reproduced the Papers – and brought them back on a seat he bought for them on the Eastern Shuttle.
To better understand the context of the times, it should be noted that Ellsberg spent about a year trying to leak the Papers to anti-war politicians before going to the Times’ Sheehan. But even the most ardent anti-war senators were frightened of receiving the Papers and acting upon them, and turned Ellsberg’s pleas down. Ellsberg’s hope that they would read the Papers from the well of the Senate was thwarted. He became depressed until he received a more positive response from Sheehan, whom he had met when both of them were in Vietnam – Sheehan reporting on the war and Ellsberg working for the Defense Department. (The Times’ reaction at first was not much different. At a 25th anniversary panel in the Times building, Abe Rosenthal, the legendary editor to whom Sheehan went with his potential scoop, said his first instinct was that the Papers were a hoax being perpetuated by some Harvard students.)
I got to know Ellsberg somewhat well from hosting him at that 2016 Dinner and from moderating three panels about the Pentagon Papers which featured him as a panelist. At the outset, I would say he was the toughest person I ever had to moderate. I would ask him a question about 1971, and, after a perfunctory answer, he would turn to the audience and hold forth on the latest government atrocity. I found it next to impossible to stop this filibuster, as he spoke swiftly, seemingly without taking a breath, and he was so passionate in his oration that it seemed unworthy to interrupt with my more mundane next question – plus, I couldn’t help but think that his bravery and self-sacrifice gave him a certain non-interruption privilege.
He was a very intense, highly intelligent and serious person, always totally taken by the ills of the world around him. (Henry Kissinger said he was the smartest student he taught at Harvard.) Indeed, after the Pentagon Papers, I believe he was arrested over 50 times protesting one government atrocity or another, often at the gates of the Texas ranch of George Bush 43, protesting our waging of the Iraq War. It also is often forgotten that he originally was a supporter of the War in Vietnam; it was only after he got wind of the government’s lies, and his own evaluation from being out on the battlefield that the War could not be won, that he began opposing the conflict.
The personal incident for which I’ll remember Daniel Ellsberg came at an ABA Forum program I moderated in Palm Springs in 2006. After the panel, Ellsberg suggested we have lunch together. I agreed, but the lunch was spent by his berating me for the Times not having published Jim Risen’s expose about the Bush Administration’s warrantless and unconstitutional wiretapping of Americans in aid of the War on Terror before Bush’s ’04 re-election. I had lawyered that article, advising that because it dealt with telecommunications, it wasn’t as legally clear-cut as – note the relevance here – the Pentagon Papers. Of course, I had nothing to do with the Times’ decision as to when to publish, but he wasn’t interested in that. (I also don’t believe for a moment, as it seems Ellsberg did and many others do, that if the Times had published that story before the election, it would have had any effect on the result.)
In any case, at that point in our lunch, my then 12-year-old son, arrived at our table to remind me, “Dad, you said we were going to play football.” Yes, I responded quietly, we’ll play football after I finish lunch. “No, you said we were going to play now,” Griff insisted. I changed tactics and decided to introduce Griff to Ellsberg. I induced them to shake hands. What happened next was totally unexpected. Ellsberg, who, as always, was dressed for Palm Springs in a suit, took a colored handkerchief out of his pocket, then another, and then another and another – and proceeded to perform 10 minutes of magic for my flabbergasted son. Apparently, Ellsberg was an amateur magician. As my wife said without missing a beat, “Now we know how you got the Papers out of the Pentagon.”
George Freeman is executive director of the Media Law Resource Center. The opinions expressed are his alone, and not those of the organization. Please email your responses to gfreeman@medialaw.org; they may be printed in the following issue.