In the final years of his long and remarkable life, Daniel Ellsberg, the disaffected military analyst who leaked the so-called Pentagon Papers in 1971, wanted to be prosecuted. And he hoped I would help pave the way.
The charge he sought was misappropriation of national security secrets under the Espionage Act, and his plan was to give me another classified document that he had taken decades ago and kept without authorization all along. He wanted to build a defense that would allow the Supreme Court to rule that law unconstitutional insofar as it applied to those who leaked government secrets to reporters. Former President Donald J. Trump is now accused of breaking the same law 31 times, albeit in very different circumstances.
Ellsberg’s disclosure of the Pentagon Papers in 1971 – a secret study of the Vietnam War showing that a generation of military and political leaders had lied to the public – and its aftermath left a mark on history that shaped most of his life.
But buried in some obituaries were fleeting references to a 2021 episode in which he gave me a top-secret document about efforts by American military leaders to conduct a nuclear first strike against China in 1958, while accepting the risk that the Soviet Union would do so, that it would retaliate on behalf of its ally, and that millions of people would die.
In examining his legacy, the scrutiny he sought to bring to the espionage law with this disclosure also deserves consideration.
“If I am indicted, I will reaffirm my belief that what I am doing – like what I have done in the past – is not criminal,” he told me, arguing that the act was “to criminalize the secret Finding the truth in the world” “public interest” should be considered unconstitutional.
The government has various tools to deter and punish unauthorized disclosures to reporters and the public, and for the most part in American history it has not attempted to jail whistleblowers. The Espionage Act has been in effect since World War I, but it wasn’t until the second half of the 20th century that the government began using it to charge leakers instead of spies – initially with little success.
In 1957, the military indicted the Espionage Act in a court-martial against an army colonel for giving reporters information about a controversial missile program, but prosecutors dropped the charges. In 1971, the Justice Department obtained its first such indictment in the case against Ellsberg and a colleague who had assisted him, Anthony Russo. But a judge dismissed the charges, citing government misconduct and illegal gathering of evidence.
A decade later, the Justice Department under the Reagan administration tried again, indicting a defense analyst who had provided classified satellite photos of a Soviet shipyard to Jane’s Defense Weekly under the Espionage Act. He was sentenced. But it was so strange and unfair that only one person should be sent to prison for an act that had been routinely committed for decades that President Bill Clinton pardoned him in 2001.
However, beginning in the middle of the George W. Bush administration and also under both party presidents, the Justice Department began routinely cracking down on whistleblowers using the Espionage Act. The law provides for a harsh sentence – 10 years per count – and prohibits defendants from seeking a jury acquittal by arguing that their disclosures were in the public interest. Most defendants enter into appeal agreements to avoid the risk of lengthy sentences, thereby eliminating the possibility of appeals challenging the constitutionality of the law’s application in such circumstances.
Ellsberg and I had been discussing the government’s increasing use of the law in 2014, when I wrote about how Edward J. Snowden, a former National Security Agency contractor who leaked secrets about surveillance activities, had joined the board of a nonprofit press freedom organization, Ellsberg was involved in its founding. (Mr Snowden, whom Ellsberg publicly considered a soul mate, was living in Russia as a fugitive from charges under the Espionage Act.)
“The question — which few people realize, I would say is a question — is whether this application of the Espionage Act to individuals informing the US public, rather than secretly informing a foreign power like a spy, is constitutional,” he said he me. “The topic is hardly discussed at the moment. When I unveiled the Pentagon Papers, I didn’t have that in mind—I assumed I was breaking the clear language of that law, as I had been warned. And I was.”
In the years that followed, more and more reporter sources were indicted under espionage laws. And in 2019, under the Trump administration, the Justice Department crossed a new line by seeking espionage law indictments against WikiLeaks founder Julian Assange — not for leaks, but for instigating and publishing leaks. The ministry under the Biden administration has maintained these unprecedented allegations; Mr Assange has delayed a trial by his fight against extradition in the UK but keeps losing appeals there.
With this in mind, Ellsberg called me on a sunny Saturday afternoon in spring 2021. Back then I was watching a Little League game. I moved away from the low bleachers and lawn chairs to be out of earshot of other parents.
Decades ago, Ellsberg said he conducted a second secret study based on internal government documents that he had not shared with reporters at the time of the Pentagon Papers because it was on a different topic: the bombing raid by Chinese communist forces on Taiwan-controlled islands in 1958, which started a crisis. It showed that the world was closer to nuclear war than the public should have known.
Am I interested in writing about it? I was.
In the weeks that followed, I carefully read the Taiwan Study and consulted experts on the history of the 1958 crisis. As I worked on my article, Ellsberg and I spoke repeatedly. He preferred to video call from his book-crammed home office in California. During a long phone call, his wife Patricia came to us.
Part of his motivation was renewed tensions over Taiwan, he said. He said it was likely that Pentagon war planners would again draw up contingency plans to use nuclear weapons should China attack Taiwan, and that conventional weapons appeared insufficient to hold off the country. He felt the possibility of such a dire move warranted public debate.
But another reason, he said, was that he was hoping to be charged under the Espionage Act for openly admitting to having kept and disseminated the classified document without authorization. He wanted to be a test case to test before the Supreme Court the constitutionality of how the Justice Department used the law to punish leakers.
He pointed out that the provision against the unauthorized keeping of national security secrets is so broad that it could, on the face of it, also be used to charge journalists, publishers and even readers of a newspaper article about a confidential matter who tell a spouse about it or keep a clipping instead of turning it over to the authorities. Noting the chilling effect that the law’s creeping expansion is having on the information available to the public in a democracy, he expressed disappointment that the Biden administration had not dropped the Espionage Act charges against Mr Assange.
“It’s clearly too broad and doesn’t just apply to people like me who have had security clearance. Assange is feeling the burden of that now,” he said, adding, “For 50 years I’ve been saying to journalists, ‘That thing was a loaded gun looking at you.'”
In short, at age 90 he was willing to risk the prison sentence he had been spared at 42. But as aggressive as the Justice Department has become in applying the Espionage Act, it apparently didn’t want to go along with it if it went along with Ellsberg’s plan. The article was published and caused quite a stir – but to his disappointment, no charges were filed.
“I was looking forward to fighting in court,” he told an interviewer in March after announcing he had been diagnosed with pancreatic cancer. “That was before I knew my life would be shorter than I expected.”