LEGAL NEWS PHOTOS BY CYNTHIA PRICE
by Cynthia Price
Legal News
Dr. Daniel Ellsberg is still sharp at the age of 80, his intellect formidably comprehensive, as the local panelists invited to discuss WGVU-Engage’s screening of the extended preview for The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers might attest.
Organizers of the event at Grand Valley’s Loosemore Auditorium, which was the result of a grant from the Corporation for Public Broadcasting through American Documentary/POV, showed a half-hour version of the documentary, which was scheduled to be aired at full length on WGVU television Tuesday evening May 31 at 10 p.m. The over-capacity crowd saw a detailed outline of the story that shaped Ellsberg’s life.
Many people remember in a general sense what happened: a Pentagon employee, Ellsberg was involved with a report which detailed how several presidents had lied in order to get, and keep, the United States involved in the war in Vietnam. He took the now-famed Pentagon Papers to the New York Times, which, after some debate, published them. The U.S. Department of Justice won an injunction against their continued publication, but Ellsberg had leaked the papers to nearly 20 other media outlets, which continued to publish the information found in the papers.
This created a national outcry against the war, which had not been declared by Congress as the U.S. Constitution requires.
Ellsberg was indicted for leaking the documents, charged with espionage, theft and conspiracy. But in the meantime, President Richard Nixon took it upon himself to engage the same people who were responsible for the Watergate break-in to get incriminating information about Ellsberg by illegally entering his psychiatrist’s office. When the Ellsberg break-in became public information, the case was dismissed.
What many may not recall, or may never have known, was in part the subject of the documentary. For example, Daniel Ellsberg was an up-and-coming military thinker of the first order. He started out working for the newly-created Rand Corporation think tank in 1959, and was an impressive, committed employee.
One of his colleagues interviewed in The Most Dangerous Man says, “Dan was focused on the question, if you had to go to war how to do it in the least dangerous way: who would make decisions, what were the options.” Ellsberg’s Harvard doctoral thesis, “Risk, Ambiguity and the Savage Axioms,” represents his intellectually powerful initial thoughts on such topics.
An even more pertinent aspect of the story of those times is that, months before Ellsberg took the Pentagon Papers to the press, he showed it to key members of Congress. Ellsberg felt compelled to make the information public only upon the inaction of those Congressional representatives — an inaction which shocked and saddened him.
After the preview showing, the panelists took their places as Ellsberg came into view. He appeared larger than life on an oversize screen in real time, courtesy of the technology offered by Skype.
Gleaves Whitney, the highly-respected director of Grand Valley State University’s Hauenstein Center for Presidential Studies, said that he was surprised when he reviewed the history of the time to see that Nixon’s ratings had gone up significantly in the time period after the publication of the Pentagon Papers. Whitney indicated that even the numbers indicating general approval for the war in Vietnam increased over the period from 1971 to 1973.
Ellsberg countered by pointing out that the scope covered by the Pentagon Papers report ended in 1968, before Nixon took office. It was not until information about the Watergate-related misconduct surfaced that Nixon’s ratings dropped.
Next Thomas M. Cooley Law School Professor Devin Schindler said in his opening remarks, as he had on a WGVU news program earlier in the month, that he had a lot of “ambivalent” feelings about what Ellsberg did.
He said that, though he regarded Ellsberg as a principled, conscientious person motivated by patriotism, he feared that others of lesser merit might use Ellsberg’s example to justify releasing information that could result in what he called chaos. “I find myself battling my strong belief in the first amendment as opposed to my belief in the rule of law.”
Ellsberg’s response took two forms: first, he pointed out that the United States has no law that is the equivalent of the British Official Secrets Act. Though the U.S. Espionage Act of 1917, under which Ellsberg was charged, shares some featuers with the British act, such cases as the New York Times v. United States brought in conjunction with the Pentagon Papers case have limited the Espionage Act’s scope.
Ellsberg, ever polite and considered in his answers, said that he was under the impression at the time he disseminated the Pentagon Papers that it was illegal to do so under U.S. law, but he found out that it was not.
Schindler indicated that there had been five cases, including his own, in which and that the current case of Bradley Manning, who is alleged to be the “leaker” of massive information to Wikileaks, is likely to be tried under the Espionage Act — so he felt that the jury was still out.
Second, Ellsberg said that he interpreted the U.S. Constitution, a document he held in greatest esteem, to mandate actions such as those he took. He felt the Constitution’s highest calling was to inform the public when one or more persons transgressed against the separation of powers. In particular he pointed out that the framers were clear about intending that the president be something quite other than a king.
Perhaps most surprising about Thursday night’s panel discussion was the interaction between Ellsberg and Peter Hoekstra, former West Michigan Representative to the United States Congress. Hoekstra is known to be a conservative, and he was either chair or ranking member of the House Intelligence Committee for nearly all his 18 years in Congress.
Hoekstra began his remarks by saying that in his opinion nothing that Dr. Ellsberg did would fall under the limitations posed by national security concerns. Part of the problem, he felt, was the overclassification of documents, indicating he saw no reason to construe release of the Pentagon Papers as “abetting or giving aid to the enemy.”
He also said that Ellsberg taking the information he had to Congress was absolutely correct, though he was discouraged by the Congressional response., and that given that response, he found it understandable that Ellsberg took the matter to the public. “He did everything right,” Hoekstra said.
Ellsberg and Hoekstra continued to agree throughout the evening, surprising and amusing the audience and themselves. They talked about the limitations of the “Gang of Eight” procedure where selected Congress people are brief on national security incidents. Both felt this limited Congress’s Constitutional right to know.
WGVU Engage is designed to conduct outreach to the community at large through programs and events. Steve Chappell, who obtained the funding from POV, promises more high-quality events to come, including a Freedom Riders exhibit at the Gerald R. Ford Museum in 2012.
