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Whistleblowing

Trump’s War on the Press

ACLU lawyers believe that Trump is likely to prosecute journalists and editors for publishing leaks of classified information, for the first time, using the Espionage Act. So far, the Espionage Act has been used for leaks to the American public only against government officials or former ones, of which I was the first, for the Pentagon Papers in 1971.

There were only two other such prosecutions before Obama; he prosecuted nine cases, or three times as many as all previous presidents together. It’s being taken for granted that Trump will follow Obama’s pattern, but also believed that he will go further to use the Act against reporters for the first time.

The Supreme Court might (or might not) find this application unconstitutional under the First Amendment (though the plain language of the Act–which was meant for spies, not leakers, and used only for spies before my case, applies as well to anyone who copies, holds, or passes on information “related to the national defense” including journalists, publishers (like Julian Assange or the New York Times) or even readers of the newspapers (!) as well as to officials.

Even if the Court eventually ruled against the use of the Espionage Act in this application (as I believe they clearly should, on First Amendment grounds), the costly and stressful legal proceedings, perhaps taking years, would have a frigidly “cooling” effect on the journalistic process.

What is almost unknown is that Richard Nixon intended to use the Espionage Act to prosecute journalists from the New York Times (including Neil Sheehan and Hedrick Smith) in the Pentagon Papers case covered by the upcoming movie “The Post”, along with academics and others (possibly Noam Chomsky, Howard Zinn and Richard Falk) to whom I had given parts of the Pentagon Papers.

A grand jury in Boston was sitting for this purpose, and indictments were expected by defense lawyers (see “Fighting for the Press” by James Goodale, the Times’ lawyer) but it was dissolved after my charges were dismissed in 1973 in part on grounds of warrantless wiretapping that would undoubtedly have applied to some or all of these other defendants.

Thus Trump would simply be following in the footsteps–on this path as on others–of Richard Nixon: whether or not the final result for himself is the same.

All this makes “The Post”–due out in late December and early January–all the more timely! More about “The Post” here:  https://movieweb.com/post-movie-2017-photo-steven-spielberg-tom-hanks-meryl-streep/

Secrecy and National Security Whistleblowing

[Originally published in Social Research]

I) Reflections on Secret-keeping and Identity

In the “national security” area of the government–the White House, the departments of state and defense, the armed services and the “intelligence community,” along with their contractors–there is less whistleblowing than in other departments of the executive branch or in private corporations. This despite the frequency of misguided practices and policies within these particular agencies that are both more well-concealed and more catastrophic than elsewhere, and thus even more needful of unauthorized exposure.

The mystique of secrecy in the universe of national security, even beyond the formal apparatus of classification and clearances, is a compelling deterrent to whistleblowing and thus to effective resistance to gravely wrongful or dangerous policies. In this realm, telling secrets appears unpatriotic, even traitorous. That reflects the general presumption–even though it is very commonly false–that the secrecy is aimed not at domestic, bureaucratic or political rivals or the American public but at foreign, powerful enemies, and that breaching it exposes the country, its people and its troops to danger.

Even those insiders who have come to understand that the presumption is frequently false and that particular facts are being wrongly and dangerously kept secret not so much from foreigners but from Congress, courts or the public are strongly inhibited from speaking out by an internalized commitment to keep official secrets from outsiders, which they have promised to do as a condition of employment or access.

To be sure, there are strong, usually more than adequate careerist incentives not to break those promises. Being found to do so exposes officials to loss of access to meetings and information, loss of clearance, demotion or loss of promotion, loss of job or career, loss of retirement benefits, harm to marriage or to children’s prospects that comes with loss of income, even danger of prosecution and prison. The last risk is much less likely than they are led to believe—at least, that was true prior to the present Obama administration — but the other job-related penalties are not, and they prove more than sufficient to keep most secret-keepers from breaking the rules in ways that would expose them to such losses, even when the welfare of many others is at stake.

However, as a former insider I can attest to psychological dimensions of this behavior that seem rarely to have been discussed. They seem worthy of some extended reflection here, given my own motive to understand this behavior in order in some respects to change it. In my experience, the psychological stakes for officials in keeping their commitment to keep secrets-even what appear to be “guilty” secrets that not only preclude democratic accountability but endanger the welfare of many people–go beyond careerist calculations of keeping a job or possible punishments for disobedience, influential and even sufficient as those considerations generally are. Continue Reading

Ellsberg in LA Times: “There should be a Pentagon Papers out every year.”

Daniel Ellsberg was interviewed by the Los Angeles Times in anticipation of the premiere of The Most Dangerous Man in America tonight on PBS:

Ellsberg was critical of George W. Bush’s administration for what he regards as its disdain for transparency, but also blames the Obama White House for continuing the cloaked practices in the war on terror. He’s heartened by the recent cache of documents released by WikiLeaks on the Afghan war, though he thinks newspapers are more credible places to publish than the Internet. But he applauds the site for offering a clearer look at what the U.S. government is up to: “There should be a Pentagon Papers out ever year,” he says.

Nuclear Hero’s “Crime” Was Making Us Safer

[Daniel’s op-ed in the Los Angeles Times, 4/21/04]

Mordechai Vanunu is the preeminent hero of the nuclear era. He consciously risked all he had in life to warn his own country and the world of the true extent of the nuclear danger facing us. And he paid the full price, a burden in many ways worse than death, for his heroic act — for doing exactly what he should have done and what others should be doing. Continue Reading

When the Leaders Are the Problem

[This is Daniel’s Afterword to the book Flirting With Disaster: Why Accidents Are Rarely Accidental by Marc Gerstein with Michael Ellsberg]

Dr. Gerstein’s final chapter has given guidelines for leaders on how they might avert the kinds of catastrophes described in this book. It would be good for society (and all organizations) if more leaders exhibited this kind of concern and followed the suggestions he gives.

However, in my own experience in government, and in my study of national security policy catastrophes in the decades since, I have come to believe that the most dangerous practices in the national security realm reflect priorities, in general, that are set by top officials: getting reelected, avoiding condemnation for past actions, or other political or bureaucratic objectives. Those priorities generally take great precedence over safety or preventing public harm. Continue Reading