Before WikiLeaks, US Government Threatened Press Freedom With Grand Jury Investigations Into Pentagon Papers

Chelsea Manning has been jailed for contempt in a county detention facility in Alexandria, Virginia, for over a week. She refused to testify before a federal grand jury investigation into WikiLeaks.

The grand jury investigation has existed in some form since late 2010, and as the government holds Manning in jail, hoping this will coerce her to answer questions, prosecutors threaten press freedom by pursuing charges against WikiLeaks editor-in-chief Julian Assange and other individuals who have worked on WikiLeaks publications.

While President Barack Obama’s administration ran up against First Amendment protections that discouraged them from bringing conspiracy charges, President Donald Trump’s administration is apparently convinced it can circumvent these protections and still cobble together a conspiracy case.

But it is not the first time a grand jury investigation launched by the United States government targeted journalists and undermined press freedom.

When David House, a founding member of the Chelsea Manning Support Network, was subpoenaed and appeared before the WikiLeaks grand jury in June 2011, he contended President Barack Obama’s administration was employing “fear tactics” honed by prosecutors under Richard Nixon’s presidency.

“The DOJ is attempting to dismantle a major media organization—WikiLeaks—and indict its editor, Julian Assange. The DOJ’s ever-widening net has now come to encompass academics, students, and journalists in the Cambridge area,” House stated. “The administration’s goal is to force these individuals to testify against this media organization in an attempt to cast its publications and those of its media partners — the New York Times, the Guardian, Der Spiegel, Le Monde, and El Pais — as acts of espionage.”

After Daniel Ellsberg, who worked for the RAND Corporation, provided copies of the Pentagon Papers to media organizations, the Justice Department convened two grand juries in the Boston area.

In April 1971, prosecutors targeted individuals, who possessed copies of the Pentagon Papers and were involved in distributing parts of the study to the press.

Months later, in August, the Justice Department reportedly targeted Neil Sheehan, a New York Times reporter who was the first to write about the Pentagon Papers. At least 13 people were subpoenaed, including: Noam Chomsky, MIT linguist and antiwar activist, Richard Falk, an international law professor who was affiliated with the Institute for Policy Studies, Senator Mike Gravel, and David Halberstam, a journalist.

Samuel Popkin, an assistant professor who taught government at Harvard University, endured the most aggressive action from the grand jury. He was jailed after a court found him in contempt.

Much about the scope and targets of the investigation remain secret over 45 years later. However, in 2018, a lawsuit was filed by Jill Lepore, an American history professor at Harvard University and staff writer for the New Yorker. Lepore filed declarations of support from Ellsberg, Chomsky, Falk, Gravel, and Popkin to help force the release of records that could reveal key details about how the government investigated journalists.

The legal arguments in these records, as well as transcripts showing what questions were asked, may offer hints at how prosecutors may justify charging Assange and others with crimes. (Currently, there are sealed charges, which were filed against Assange.)

Ellsberg and Popkin knew each other through their shared interest in the Vietnam War. Popkin had published several articles and informed FBI agents in the summer of 1971, when they questioned him, that he had no knowledge of the leak of the Pentagon Papers.

“I was in Hong Kong when the papers were distributed,” Popkin recalled in his declaration. “I discovered the leak, along with Ellsberg’s involvement, at the same time as the general public.”

Popkin was first subpoenaed in August 1971. He received multiple subpoenas between the fall of that year and the fall of 1972.

“Not once was I ever informed about the purpose of the grand jury investigation or why the FBI had focused so inexplicably on me,” Popkin stated. “Yet, I was repeatedly called to appear before the grand jury and subjected to hours of broad, speculative, and unrestrained questioning. It became apparent to me that the government was engaged in a fishing expedition.”

It did not matter that Popkin had no firsthand knowledge of what happened with the Pentagon Papers. “Federal prosecutors continued to question me, not about facts, but about my opinions. I was asked to name anyone I had ever interviewed or had a conversation with, who I thought may have had knowledge of the Pentagon Papers study or may have possessed the Pentagon Papers in Massachusetts. I refused to answer this line of questioning.”

“I believed answering questions about my suspicions and opinion would have made it much more difficult for me to obtain interviews for future research as sources may be more reluctant to relay sensitive information, or speak at all, if their conversations could be revealed in a government fishing expedition,” Popkin shared. “Because of my refusal to answer questions concerning my opinion on who may have possessed the Pentagon Papers before the New York Times published the documents, I was cited for contempt in March of 1972.”

The contempt charge was fought in the courts, however, the First Circuit Court of Appeals rejected Popkin’s argument. Popkin believed a judge should determine whether questions “regarding anything beyond knowledge of a crime” were “relevant” to the proceedings.

Popkin took his case to the Supreme Court. The solicitor general, Erwin Griswold, informed justices on the court that prosecutors would no longer ask for names of “confidential contacts.” The assurance led the Supreme Court to decline to hear Popkin’s lawsuit, but prosecutors still requested “names” from him.

A federal judge subsequently ordered Popkin to serve a sentence for contempt at Dedham County Jail in Massachusetts. He was to remain there until the grand jury concluded, but several days later, the grand jury was “abruptly dismissed.” Popkin’s release from jail marked the end of a “15-month-long legal tug-of-war.”

The grand jury investigation against anyone who potentially helped Ellsberg likely suggests how broad the universe of people subpoenaed may be in the grand jury investigation against WikiLeaks. Prosecutors do not have to only call people known to have worked or associated with the publisher. They may call someone like Popkin to testify, who has no knowledge at all of WikiLeaks, if prosecutors are convinced that person may have talked to someone who potentially knows something about WikiLeaks publications.

House is one of the few individuals known to have received more than one subpoena. He was called to testify again in July. Instead of invoking his rights, as he did in 2011, House opted to answer questions, which he said lasted for about 90 minutes. The questions were about his interactions with Assange, as well as how the disclosures happened.

In 2010, an anonymous U.S. military official suggested there was interest in whether Manning handed over any compact discs containing files to anyone in the U.S., especially in the Boston area. Government informant Adrian Lamo was quoted in the press asserting he had knowledge of an individual who helped Manning setup encryption software. Such suspicions likely fueled the initial phase of the grand jury investigation into WikiLeaks.

Unlike Popkin, Manning was held in contempt and immediately jailed. That will make it harder for Manning to prepare a legal challenge against the contempt charge, as well as the initial grand jury subpoena. But she hopes to raise up to $150,000 for her legal defense to fight Justice Department prosecutors.

Ironically, in 2010, when Manning exposed war crimes and examples of misconduct by U.S. government officials, she was prosecuted for her whistleblowing. Remarks to fellow officers in the U.S. Army and words from chat logs were used to harshly convict her. Her words were even used to justify humiliating and confining her in solitary confinement while she was at the Quantico Marine Brig.

Justice Department prosecutors now punish Manning for her silence. She may be in jail at the William G. Truesdale Adult Detention Center in Alexandria, Virginia, for up to 18 months, depending on when the secret grand jury was empaneled. But if the grand jury is renewed, that would reset the clock and mean Manning is in jail for her resistance even longer.

Manning has clearly positioned her defiance in a tradition of grand jury resistance that has existed in the United States for decades. She is taking a stand for press freedom as well, as prosecutors push onward with a fishing expedition that is an attack on the news gathering process itself.