Floyd Abrams, one of the lawyers who defended the NY Times in the Pentagon Papers lawsuit, differentiates between Daniel Ellsberg’s actions in releasing those documents and Julian Assange’s in Wikileaks. Ellsberg, he says, was mindful of the damage that could be done and therefore purposely withheld a large chunk of information relating to US negotiations concerning the Vietnam War, because he “didn’t want to get in the way of diplomacy.”
Abrams rightly points out that Assange has censored very little, and that his motive appears to be the opposite: to get in the way of diplomacy, and expose it to the harsh light of day.
Abrams points out the Assange’s motives might determine whether he can be prosecuted under the Espionage Act. Unlike Ellsberg or Assange’s informant Manning, he is neither a US government employee nor in a national security position. Therefore, in order for a conviction to occur under the Act, it would have to be proven that Assange intended to harm the United States or help its enemies by releasing the material.
Although it may be fairly clear that’s exactly what Assange intended to do, proving it in a court of law would be a very formidable and perhaps even impossible task. This also would be the situation if any journalist or newspaper involved in publishing the material were to be prosecuted.
Ellsberg’s situation was different. Although in the end Watergate saved him, he originally felt he ran a high risk of going to prison for life. He had worked for the CIA and was a RAND corporation employee at the time of the Papers’ reveal. As such, he had access to classified information and had taken an oath to keep it secret, an oath he violated when he gave the Papers to the MSM (after an initial attempt to offer them to some sympathetic senators failed).
Abrams writes of the Papers:
The Pentagon Papers revelations dealt with a discrete topic, the ever-increasing level of duplicity of our leaders over a score of years in increasing the nation’s involvement in Vietnam while denying it. It revealed official wrongdoing or, at the least, a pervasive lack of candor by the government to its people.
This is the commonly accepted interpretation of what the Papers revealed. But how many people have read them? Certainly not I; they’re massive. Most people only have a foggy notion of what Abrams means when he writes of “wrongdoing,” and “lack of candor.”
Both characteristics are inevitable in war, of course, and the latter is absolutely required in war. A country could never win a war conducted with full transparency—just as diplomacy could not be successfully conducted with the sort of “candor” Assange professes to want to engender. The question is one of degree and balance, however, and there is an excellent argument to be made that the Vietnam War was conducted with an unacceptable degree of both wrongdoing and lack of candor, because even its very aims (war of attrition vs. commitment to victory) were covered up.
Many of the details of the Pentagon Papers seem to have been forgotten, or perhaps were never even learned, by the vast majority of people (myself included). For example, in doing research for this post, I learned (or re-learned) that the Papers were actually a special study commissioned by Johnson’s Secretary of Defense McNamara, and only concerned actions of the US government up to and including the Johnson administration, from whom Papers were kept secret:
Thirty-six analysts””half of them active-duty military officers, the rest academics and civilian federal employees””worked on the study. The analysts largely used existing files in the Office of the Secretary of Defense and did no interviews or consultations with the armed forces, the White House, or other federal agencies to keep the study secret from others, including National Security Advisor[sic] Walt W. Rostow.
This is really quite extraordinary in and of itself. What’s more, Johnson and his Secretary of State Dean Rusk only learned of the Papers’ existence and content when they were published by the Times in 1971. By then, of course, it was Nixon who was in charge of the Vietnam War, in what I’ve called the “second act.” And it was Nixon who was unsuccessful in the famous lawsuit that went to the Supreme Court, in which he fought the Times to prohibit the publication the Papers.
The publication of the Papers helped solidify certain conceptions about government wrongdoing and lack of candor. But be careful what you think you know:
Journalist Edward Jay Epstein has shown that in crucial respects, the Times coverage [of the Papers] was at odds with what the documents actually said. The lead of the Times story was that in 1964 the Johnson administration reached a consensus to bomb North Vietnam at a time when the president was publicly saying that he would not bomb the north. In fact, the Pentagon papers actually said that, in 1964, the White House had rejected the idea of bombing the north. The Times went on to assert that American forces had deliberately provoked the alleged attacks on its ships in the Gulf of Tonkin to justify a congressional resolution supporting our war efforts. In fact, the Pentagon papers said the opposite: there was no evidence that we had provoked whatever attacks may have occurred.