Ellsberg Blows the Whistle Again. Will DOJ Attempt to Prosecute Again?

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May 24, 2021

Unbeknownst to most of us, Dan Ellsberg secretly copied another exposive report when he copied the Pentagon Papers fifty years ago. The second classified study documented how close the U.S. came to starting a nuclear war with China in 1958. The NYTimes reports:  “When Communist Chinese forces began shelling islands controlled by Taiwan in 1958, the United States rushed to back up its ally with military force — including drawing up plans to carry out nuclear strikes on mainland China, according to an apparently still-classified document that sheds new light on how dangerous that crisis was.”

Ellsberg has previously published the study on his website, but didn’t call attention to it. But with recent escalations in tensions with China, Ellsberg is now highlighting the previously censored sections of the report. “As the possibility of another nuclear crisis over Taiwan is being bandied about this very year, it seems very timely to me to encourage the public, Congress and the executive branch to pay attention to what I make available to them,” Ellsberg told the NYTimes.

So again, Ellsberg is blowing the whistle. But this time, he actually welcomes prosecution… so he can challenge the use of the Espionage Act to silence whistleblowers of conscience:

Mr. Ellsberg said he also had another reason for highlighting his exposure of that material. Now 90, he said he wanted to take on the risk of becoming a defendant in a test case challenging the Justice Department’s growing practice of using the Espionage Act to prosecute officials who leak information.

Enacted during World War I, the Espionage Act makes it a crime to retain or disclose, without authorization, defense-related information that could harm the United States or aid a foreign adversary. Its wording covers everyone — not only spies — and it does not allow defendants to urge juries to acquit on the basis that disclosures were in the public interest.

Using the Espionage Act to prosecute leakers was once rare. Mr. Ellsberg himself was charged under it, before a judge threw out the charges in 1973 because of government misconduct. The first successful such conviction was in 1985. But it has now become routine for the Justice Department to bring such charges.

Most of the time, defendants strike plea deals to avoid long sentences, so there is no appeal. The Supreme Court has not confronted questions about whether the law’s wording or application trammels First Amendment rights.

Saying the Justice Department should charge him for his open admission that he disclosed the classified study about the Taiwan crisis without authorization, Mr. Ellsberg said he would handle his defense in a way that would tee the First Amendment issues up for the Supreme Court.

“I will, if indicted, be asserting my belief that what I am doing — like what I’ve done in the past — is not criminal,” he said, arguing that using the Espionage Act “to criminalize classified truth-telling in the public interest” is unconstitutional.

DRAD is working with Dan to amplify this story, and to compel Congress to reform the Espionage Act. More updates on the campaign soon.