In the last years of his long and remarkable life, Daniel Ellsberg, the disenchanted military analyst who famously leaked the so-called Pentagon Papers in 1971, wanted to be prosecuted. And he hoped I would help pave the way.
The charge he coveted was mishandling national security secrets under the Espionage Act, and his plan was to give me another classified document he had taken decades ago that he had held onto without authorization all this time. He wanted to mount a defense in a way that would offer the Supreme Court an opportunity to declare that law unconstitutional as applied to those who leaked government secrets to reporters. It is the same law former President Donald J. Trump is now accused of violating 31 times, though under very different circumstances.
Mr. Ellsberg’s disclosure in 1971 of the Pentagon Papers — a classified study of the Vietnam War showing that a generation of military and political leaders had lied to the public — and its fallout left a stamp on history that defined the bulk of his life.
But buried in some obituaries were glancing references to a 2021 episode in which he gave me a top-secret document about American military leaders’ push to carry out a first-use nuclear strike on China in 1958, accepting the risk that the Soviet Union would retaliate in kind on behalf of its ally, and that millions of people would die.
In examining his legacy, the scrutiny he tried to bring to the Espionage Act in making that disclosure also deserves attention.
“I will, if indicted, be asserting my belief that what I am doing — like what I’ve done in the past — is not criminal,” he told me, arguing that using the act “to criminalize classified truth-telling in the public interest” should be deemed unconstitutional.
The government has various tools to deter and punish unauthorized disclosures to reporters and the public, and for most of American history, it did not try to send leakers to prison. The Espionage Act has been on the books since World War I, but it was not until the second half of the 20th century that the government began trying to use it to charge leakers instead of spies — initially, to little success.
In 1957, the military included Espionage Act charges in the court-martial of an Army colonel for giving reporters information about a disputed missile program, but prosecutors dropped the charges. In 1971, the Justice Department obtained its first such indictment in the case against Mr. Ellsberg and a colleague who had helped him, Anthony Russo. But a judge threw out the charges, citing government misconduct and illegal evidence gathering.
A decade later, the Justice Department under the Reagan administration tried again, bringing Espionage Act charges against a defense analyst who had provided classified satellite photographs of a Soviet shipyard to Jane’s Defence Weekly. He was convicted. But it was so odd and unfair that only one person had been sent to prison for an act that had happened routinely for decades that President Bill Clinton pardoned him in 2001.
Starting midway through the George W. Bush administration and continuing under presidents of both parties, however, the Justice Department began routinely going after leakers using the Espionage Act. The law carries a harsh penalty — 10 years per count — and defendants are forbidden to suggest that juries acquit by arguing that their disclosures were in the public interest. Most defendants take plea deals to avoid the risk of lengthy sentences, foreclosing the opportunity for appeals challenging the constitutionality of using the law in such circumstances.
Mr. Ellsberg and I had talked about the government’s accelerating use of the law in 2014, when I wrote about how Edward J. Snowden, a former contractor for the National Security Agency who leaked secrets about surveillance activities, had joined the board of a nonprofit press freedom organization Mr. Ellsberg helped found. (Mr. Snowden, whom Mr. Ellsberg publicly embraced as a kindred spirit, has been living in Russia as a fugitive from Espionage Act charges.)
“The question — which hardly anyone realizes, I would say, is a question — is whether this application of the Espionage Act to people who are informing the U.S. public, not secretly informing a foreign power like a spy, is constitutional,” he told me. “The issue is hardly ever raised now. It wasn’t in my mind when I revealed the Pentagon Papers — I assumed I was breaking the plain language of that law, as I had been warned. And I was.”
In the years that followed, more reporters’ sources faced Espionage Act charges. And in 2019, the Justice Department under the Trump administration crossed a new line by obtaining an Espionage Act indictment of the WikiLeaks founder Julian…
Read More: Why Daniel Ellsberg Tried to Get Prosecuted Near His Life’s End