Forum on Government Secrecy and the First Amendment Features Daniel Ellsberg

Writer and activist Daniel Ellsberg arrived at a recent panel co-sponsored by the American Booksellers Foundation for Free Expression (ABFFE) and the Free Expression Network (FEN) just moments before the scheduled 5:30 p.m. start. With a winning smile and a mien that combined bookish uncle with friendly academic, Ellsberg looked engaging and relaxed, especially for a man who had been arrested that day at a Manhattan anti-war rally at the U.S. Mission to the United Nations.

However, after waiting for a few hours in a packed holding cell for processing by police, Ellsberg and his 25-year-old son, Michael (arrested for the first time that day), had stopped for a quick burrito before heading to the panel, "Government Secrecy, War, and the First Amendment."

Daniel Ellsberg

The December 10 event was hosted by the Arthur Garfield Hays Civil Liberties Program at New York University Law School and was sponsored by FEN, ABFFE, the National Coalition Against Censorship, and PEN American Center. In addition to Ellsberg, the panel featured John R. (Rick) MacArthur and Judith A. Miller. MacArthur is the publisher of Harper's magazine and the author of Second Front: Censorship and Propaganda in the Gulf War (University of California Press). Miller, a partner in the Washington office of Williams & Connolly, was also general counsel to the Department of Defense from 1994 to 1999.

Introducing Ellsberg, whose memoir, Secrets: A Memoir of Vietnam and the Pentagon Papers (Viking), was published this fall, ABFFE President Chris Finan put the activist's political and legal legacy within a post-September 11 context. "We are in a period of growing government censorship," Finan said, pointing to such examples as the Bush Administration's "more restrictive policy on Freedom of Information requests" and the provisions of the USA Patriot Act that permit the FBI to conduct secret searches of bookstore and library records. "The current administration has a particular fondness for secrecy," he said. "This is clearly a good moment to hear about and to talk about government secrets."

Ellsberg presented the audience with a little-known legal point and a provocative hypothetical question. He noted that in 1971, while facing a possible 115 years in prison for leaking the Pentagon Papers to the New York Times, the Washington Post, and many other U.S. newspapers, his legal team discovered that the country "has no official secrets act." Thus, despite official denunciations, Ellsberg's "unauthorized disclosures" of classified material had not violated any laws, he contended.

This revelation, however, did not mean that Ellsberg no longer faced the prospect of jail. As he noted, when he expressed optimism to his lawyer, Leonard Boudin, the lawyer replied that there was still a fifty-fifty chance Ellsberg would be convicted. As Ellsberg recounted, he replied, "Fifty-fifty? And I haven't broken any law?" Boudin countered, "Well, let's face it, Dan. Copying 7,000 pages of top secret documents and giving them to the New York Times has a bad ring to it." The Ellsberg cased ended when the judge concluded that Ellsberg could not receive a fair trial based on the violations of his civil rights by the Nixon White House.

With a presidential veto, former president Bill Clinton prevented the enactment of legislation that would have established an official secrets act, which would have criminalized the leaking of classified documents. However, Ellsberg speculated, what if Clinton had not blocked the bill? Under a more restrictive climate, the publication of Bob Woodward's Bush at War -- "which gives us the contents of classified documents," Ellsberg noted -- could set off a provocative legal showdown.

While the publication of the book would have broken no laws, Woodward could be called before a grand jury, where he could be questioned regarding who leaked classified materials to him. Refusing to answer would court charges of contempt, Ellsberg pointed out. "I think the spectacle of Bob Woodward in prison … would have a chilling effect on sources," Ellsberg said.

For Ellsberg, such hypothetical confrontations take on greater importance in the current political climate. Referring to U.S. actions regarding Iraq, Ellsberg argued that "we are in the process of being lied into a war ... at least as reckless as Vietnam." During that war, he said, "What I wish I had done [in 1964] was go to the press and tell the truth with documents." Almost 40 years later, he called for someone in government "to consider sacrificing their own security and their own clearances" to come forward with materials that will facilitate debate on a possible war. "Don't wait until the bombs are falling," he said. -- Dan Cullen