[governance] (Tangential): Daniel Ellsberg: Obama Would Have Sought a Life Sentence in My Case

[Riaz K Tayob]

[I will limit my posts on this list regarding news reports so that I can 
also make comment without cluttering the inboxes needlessly. Ellsberg's 
views...remarkably democratic, global and humane... what a guy... one 
could never be anti-American with guru's like this in the US! A long 
read, but simply brilliant - my emphasis added...  ]


  Daniel Ellsberg: Obama Would Have Sought a Life Sentence in My Case

By Timothy B. Lee, The Washington Post

08 June 13

n 1971, an American military analyst named Daniel Ellsberg gave a New 
York Times reporter a copy of "United States - Vietnam Relations, 
1945-1967: A Study Prepared by the Department of Defense," a 
multi-volume work that became known as the Pentagon Papers. The massive, 
classified study painted a candid and unflattering portrait of the 
military's conduct of the Vietnam War. The Supreme Court rejected the 
government's request 
<http://www.washingtonpost.com/wp-srv/inatl/longterm/flash/july/pent71.htm> 
for an injunction against its publication later that year in a 6-3 ruling.

Ellsberg became the first person prosecuted under the 1917 Espionage Act 
for releasing classified information to the public. But the case was 
thrown out after the judge learned that the government had engaged in 
the illegal wiretapping of Ellsberg and other misconduct.

Today, Ellsberg is one of the most outspoken critics of the Obama 
administration's prosecution of leakers. Under President Obama's tenure, 
the government has prosecuted six individuals for releasing classified 
information to media organizations.

Ellsberg is particularly fierce in his support of Bradley Manning, a 
young soldier who released a large amount of classified information to 
WikiLeaks. Manning was arrested in 2010, and his military court-martial 
began this week. Ellsberg considers Manning a hero, and he argues that 
there is little difference between what Manning did in 2010 and what 
Ellsberg did four decades earlier. We spoke by phone on Friday. The 
transcript has been edited for length and clarity.

*Timothy B. Lee: Why are you publicly supporting Bradley Manning?*

Daniel Ellsberg: There are two reasons. One is to educate the public on 
the wars that he was exposing and the information that he put out. He 
has said his goal was to help the public make informed decisions. We're 
grateful for that, and we're trying to extend that word and bring that 
about.

Also, I and a lot of other people feel that we need more whistleblowers, 
and that to allow the government simply to stigmatize them without 
opposition does not encourage that. I think we've got to convey to 
people appreciation for the information that we do get, the idea that 
someone can make a difference.

In a military trial there isn't a whole lot of possible influence, but 
the general atmosphere in the public is bound to make some influence on 
the judge. [We want the judge to] stop and think that there were some 
benefits [to Manning's actions].

*TL: In a 1973 interview 
<http://reason.com/archives/2008/06/06/why-i-did-it-an-interview-with>, 
you said that a "secondary objective" of releasing the Pentagon Papers 
was "the hope of changing the tolerance of Executive secrecy that had 
grown up over the last quarter of a century both in Congress and the 
courts and in the public at large." How has that "tolerance of secrecy" 
changed over the last four decades?*

DE: There was a period after the Vietnam war, partly due to the Pentagon 
Papers, and largely due to Watergate, that made people much less 
tolerant of being lied to, much more aware of how often they were lied 
to and how the system operated to make that lying possible without 
accountability. We got the Freedom of Information Act. The FISA court 
was set up. The FBI was reined in a great deal. The NSA was forbidden to 
do overhearing of American citizens without a court warrant. That lasted 
for some years.

But 40 years have passed, and after 9/11 in particular, all of those 
lessons have been lost. There's been very great tolerance that if the 
magic words "national security," or the new words "homeland security" 
are invoked, Congress has given the president virtually a free hand in 
deciding what information they will know as well as the public. I 
wouldn't count on the current court with its current makeup making the 
same ruling 
<http://www.washingtonpost.com/wp-srv/inatl/longterm/flash/july/pent71.htm> 
with the Pentagon Papers as they did 40 years ago. I'm sure that 
President Obama would have sought a life sentence in my case.

Various things that were counted as unconstitutional then have been put 
in the president's hands now. He's become an elected monarch. Nixon's 
slogan, "when the president does it, it's not illegal," is pretty much 
endorsed now. Meaning not only Obama but the people who come after him 
will have powers that no previous president had. Abilities on 
surveillance that no country in the history of the world has ever had.

Interestingly, after the AP revelations 
<http://www.washingtonpost.com/blogs/wonkblog/wp/2013/05/14/in-ap-surveillance-case-the-real-scandal-is-whats-legal/> 
and the [revelations about] Fox News reporter [James Rosen], who was 
actually charged 
<http://articles.washingtonpost.com/2013-05-20/local/39391158_1_justice-department-classified-information-crime> 
with aiding and abetting a conspiracy with a source, every journalist 
has suddenly woken up to the fact that they're under the gun. That may 
actually have the effect of waking people up to the fact that, for 
example, Attorney General Holder has been violating the Constitution 
steadily, and that he should be fired. But fired for what? For doing 
what had the approval of the president.

Holder should be fired for a whole series of actions culminating in this 
subpoena for James Rosen's cellphone records. I think that would be the 
first step of resistance in the right direction, of rolling back Obama's 
campaign against journalism, freedom of the press in national security.

*TL: Is government surveillance of journalists more alarming than 
prosecution of leakers?*

DE: Absolutely, but the two go together a little more than might be 
obvious. First of all, there's no question that President Obama is 
conducting an unprecedented campaign against unauthorized disclosure. 
The government had used the Espionage Act against leaks only three times 
before his administration. He's used it six times 
<http://www.washingtonpost.com/blogs/wonkblog/wp/2013/05/23/everything-you-need-to-know-about-obamas-war-on-leakers-in-one-faq/>. 
He's doing his best to assure that sources in the government will have 
reason to fear heavy prison sentences for informing the American public 
in ways he doesn't want.

In other words, he's working very hard to make it a government where he 
controls all the information. There will be plenty of leaks of 
classified information, but it will be by his officials in pursuit of 
his policies. We will not be getting information that the government 
doesn't want out, that [reveals government actions that are] 
embarrassing or criminal or reckless, as we saw in Vietnam and Iraq.

I think the newspapers really need to address the fact that they're 
going to be put in the position of printing nothing more than government 
handouts. There will be in effect a state press, as in so many other 
countries that lack freedom of the press. I don't think they have really 
awakened to that change. There would be a lot of newspaper people who 
would be comfortable with that. But there are a lot who would not.

*TL: Do you think Bradley Manning is in a different category than the 
other people President Obama has prosecuted?*

DE: Bradley Manning's case might seem to have no relevance to some of 
these other civilian disclosures because it's a military court-martial. 
But the charge they're using against him, the specific one of aid and 
comfort to the enemy, is one that puts virtually all dissent in this 
country for government policies at risk. Not only leaks in general, like 
WikiLeaks, or the New York Times for that matter, but people who aren't 
in journalism at all.*He's charged with giving aid and comfort to the 
enemy, a charge that has no element of intention or motive, simply by 
putting out information that the enemy might be happy to read.*

*I think they're going to put into the trial for example, indications 
that Osama bin Laden downloaded the New York Times, as anyone in the 
world could do. No doubt Osama was happy to have the world realize that 
his enemies were committing atrocities that they weren't admitting and 
that they weren't investigating. It was no intention of WikiLeaks or 
Bradley Manning to give comfort to Osama bin Laden. That was an 
inadvertent effect of informing the American public of that, which 
definitely did need to know it.*

Specifically, they're charging Bradley with the video. [A video of a 
2007 helicopter strike in Baghdad 
<http://en.wikipedia.org/wiki/July_12,_2007_Baghdad_airstrike> released 
by WikiLeaks under the title "Collateral Murder."] That was not in fact 
classified. But whether it was or not, it was wrongly withheld from 
Reuters who twice made Freedom of Information Act requests knowing it 
existed. David Finkel at The Washington Post quoted from the video. 
Bradley Manning was aware that Reuters had made that request and had 
been denied and that The Washington Post had access to the video and he 
believed that they had the video. I don't think it's ever been 
established whether the Washington Post reporter had the video.

That video depicts a war crime, an unarmed, injured civilian being 
deliberately killed. A squad was going to be in the area in minutes. 
They also shot at people who were trying to help the victims, including 
a father and two children.

Manning sees this, knows it's a crime, knows the evidence has been 
refused to Reuters. He knows there's no way for the American public to 
see that except to put it out. By any standard that's what he should 
have done. For them to charge him with that shows an outrageous 
sensibility. Going after the man who exposes the war crime instead of 
any of the ones who actually did it, none of whom were indicted or 
investigated.

*TL: I think some people have the impression that recent leaks have 
posed a greater threat to national security, and that the government's 
prosecutions were therefore more justified, than what you did in the 
early 1970s. Do you think that's true?*

DE: There's a very general impression that Bradley Manning simply dumped 
out everything that he had access to without any discrimination, and 
that's very misleading or mistaken on several counts.*He was in a 
facility that dealt mainly in information higher than top secret in 
classification. He put out nothing that was higher than secret. 
[Information he published] was available to hundreds of thousands of 
people. He had access to material that was much higher than top secret, 
much more sensitive. He chose not to put any of that out. He explained 
that in his statement to the court. He said what he put out was no more 
than embarrassing to the government.*

*There was more meat in the material [that Manning released] than I as a 
Pentagon official would have expected to find in material that was only 
[classified as] secret. There was information about torture and deaths 
of civilians. Apparently that is so routine in these current wars that 
it wasn't regarded as sensitive.*

So far the Pentagon has not been able to point to a single example of 
information that led to harm to an American. If they had, I think we'd 
have seen pictures of victims on the cover of Time magazine.

*TL: How do you feel about the way Manning released the information?*

DE: Bradley Manning could have put this information on the Web. Instead, 
he gave it to an organization that he had reason to expect would give it 
to media who would have editorial judgment, staff to work on it, and 
long experience with such material. I would have criticized it if he'd 
put material that he hadn't read himself directly on the Web.

On the other hand, he had no ability to read it all himself. It was just 
too much. He saw a lot of criminality, a lot of harm. He made a judgment 
to give it to WikiLeaks. I think that WikiLeaks did make a mistake in 
their release of the Afghan war logs, which they put on the Web at the 
same time the newspapers put their selected versions on the Web. I think 
that was a mistake and could have had some risk associated with it.

WikiLeaks learned from the criticism of that. And the Iraq war logs and 
the State Department cables, they put up only what the newspapers had 
chosen with a few exceptions. I think that was the right way to do it.

*The Afghan war logs were not Bradley Manning's fault. The State cables 
came out as a result of screwups involving Guardian and other people. 
Assange and others made mistakes. Bradley Manning had nothing to do with 
that.*

*TL: If you were in Bradley Manning's situation, would you have released 
as much information as he did?*

DE: I probably would not put out materials that I hadn't read. But now 
we have three years of experience with essentially no harm, and a great 
deal of good. [Former Tunisian president] Ben Ali, I think, would still 
be in Tunisia. I don't think you could have counted on the New York 
Times having put out the Tunisian material that Le Monde chose to put 
out. That was critical in bringing down Ben Ali. That led to bringing 
down [former Egyptian president Hosni] Mubarak. Looking at that 
altogether, with that experience, I think his decision to put out a 
great raft of secret material was justified and I would probably do it 
myself now if I had the chance.

*TL: Are there other examples of good results from Manning's actions?*

DE: Here is something that could not have been seen from just one 
document or a handful of documents. Contrary to Pentagon statements that 
they "don't do body counts," they were counting civilian bodies. The 
public Iraq Body Count Web site <http://www.iraqbodycount.org/> had 
compiled some 80,000 civilian deaths from newspaper accounts. But when 
the Iraq cables came out, they discovered that the army had recorded 
20,000 additional deaths. That was one thing where you had to have the 
whole body of war logs.

*There were innumerable - hundreds, possibly more than 1,000 - cases 
where American military had reported instances or knowledge of torture 
by the Iraqi authorities to whom we were turning over prisoners. In 
every one of those cases the cables showed that they were given the 
instruction not to investigate further. That was an illegal order. 
Turning over prisoners knowing they would be tortured is itself illegal 
under international law. It's just as illegal as if we were doing the 
torture ourselves. International conventions require us to investigate 
and prosecute if appropriate.*

That pattern of illegality goes right up to the commander in chief. I 
think that has something to do with Obama's strong pursuit of this case. 
Unlike the Pentagon Papers which did not reveal criminality. They 
revealed recklessness, lies, but the Pentagon Papers didn't show 
field-level crimes. What Bradley Manning revealed was a large number of 
clear-cut war crimes.

*I believe there's strong reason to believe that without Bradley 
Manning's revelations, some 20,000 to 30,000 troops would be in Iraq 
right now. That had been Obama's plan. He was negotiating to that end. 
But the disclosure by Bradley Manning of a cable that disclosed that the 
State Department was aware of an atrocity that we had officially denied, 
and was neither investigating it further nor prosecuting it, made it 
politically impossible for the prime minister in Iraq to allow Americans 
to stay in Iraq with immunity from Iraqi courts.*

In the face of that revelation, [pressure from] the political opposition 
and his own party in Iraq meant that [Iraqi Prime Minister Nouri 
al-Maliki] could not allow the troops to remain, because he couldn't 
grant immunity as President Obama was seeking.

A lot more Americans would have died in Iraq if troops had remained 
there as Obama would have preferred. Bradley Manning saved the lives of 
many troops. I think that's good. Other people may feel they should have 
stayed. I certainly would be happy to have caused the end of that 
commitment to what was after all an aggressive war.

*TL: Why do you think Bradley Manning's leaks have received less public 
support than your release of the Pentagon Papers four decades ago?*

DE: First of all, the war was incomparably unpopular by that time 
because there were more than 40,000 deaths, a number that would reach 
58,000 by the end of the war. That made the war unpopular in a way that 
was not true of Iraq.

*We've killed an enormous number of Iraqi civilians, but the public has 
not shown curiosity about what the number is, whether it's 40,000, 
400,000, or 1.5 million. There wasn't pressure on Congress even to find 
out. The media didn't show great interest in that. American casualties 
have been around 4,000, not 40,000.*

So when the Pentagon Papers revealed that we were lied into in Vietnam, 
it had a much bigger effect on public opinion. It showed that these men 
had been wasted in a wrongful unnecessary war by the U.S. We were lied 
into Iraq to the same degree, in the same way. But it didn't lead to as 
bloody a war.

Second, we had a much more independent Congress than we've had now for 
more than a decade. Since 9/11 neither party has been willing to 
challenge the president lest they individually or together be charged 
with being weak on terrorism. Both Democrats and Republicans have let 
the president get away with unconstitutional actions as a result. The 
Congress in those days was much less willing to do that.

Third, I was able to speak from the beginning, in terms of what the 
papers represented and presented my motives in a way that made a lot of 
sense to the public. A lot of the rest of the public regarded me as a 
traitor. I heard it as much as Bradley Manning did. The president and 
vice president both used those words. But I was out on bond and was able 
to explain what I had done and why I had done it. That definitely had 
its effect on the trial.

*In Bradley Manning's case, he's been held essentially incommunicado. 
*For three years, no journalist has [talked to] Bradley Manning by phone 
or in person. He's a figure you've heard nothing from. They haven't 
allowed anybody to see him. In fact, [former congressman Dennis] 
Kucinich [D-Ohio] tried formally to get in to see him. He was refused, 
or put off indefinitely.

*The U.N. rapporteur for torture tried officially to see him, privately, 
which is the only way he's allowed to operate, without the alleged 
torturers present. Manning was held for 10 months in conditions that the 
rapporteur claimed [were] at the very least cruel and inhumane 
conditions. I would say that by itself is grounds for dismissal of the 
trial. He should have been released for reasons of government 
misconduct, just like my case.*

*All the public has heard are unfavorable accounts with an emphasis on 
Manning's gender identity. It's clear from his statements to his 
**informant <https://en.wikipedia.org/wiki/Adrian_Lamo>**that [Manning's 
sexual orientation] had nothing to do with [the motives for] his 
revelations. Those were entirely conscientious and political. It had 
nothing to do with his [personal] difficulties. The idea that he did 
this because he was "troubled" is defamatory.*

*TL: What do you think is the correct legal framework for handling 
classified information? Some information needs to be kept secret, right?*

DE: *William Florence, who drafted most of the regulations [on 
classified information] in the Pentagon in the 1950s, said at my trial 
that in his estimation, some 5 percent of what is classified is properly 
classified at the time. After a few years, about 0.5 percent remains 
worthy of classification.*

Anybody who knows the system knows that Florence is not wrong. Very 
little meets the requirements of classification within two to three 
years. So as I say, something between 95 and 99 percent should not be 
classified at all. Yet it stays classified essentially forever.

*So much is classified because it might turn out to be embarrassing. You 
can't tell at the moment what prediction or recommendation will be a 
great embarrassment. So classify everything. Some of it is criminal at 
the time. A lot of it is lying and deception of the public. Some of it 
is breaking of treaties.*

So you need a much stronger Freedom of Information Act. You need more 
people to declassify information. Money spent on more people 
declassifying is money very well spent for our democracy.

*There should not be a secrets act which criminalizes all release of all 
classified information. President Obama is using the Espionage Act [as a 
de facto secrets act] which should have been regarded as unconstitutional.*

*TL: But there needs to be some penalty for disclosing secret 
information, right?*

DE: It shouldn't be criminalized. The administrative sanctions against 
putting out information that your boss doesn't want out, such as taking 
away clearance, removing access, firing, lost careers, those have kept 
far too many secrets over the last 50 years. We don't need to have 
criminal sanctions at all.

There are already sanctions for putting out a narrow class of 
information: intelligence information, nuclear weapons data, identity of 
covert operations. Putting sanctions there doesn't offend me, though 
there are some exceptions where that information should come out.

In the military, violating any order can put you in prison. But for 
civilian life, you do not want criminal sanctions for putting out 
information to the American public.



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