Daniel Ellsberg: Whistle-Blowers Are Good For Democracy

Truthdig’s Robert Scheer sat down with Pentagon Papers whistle-blower Daniel Ellsberg recently to compare Ellsberg’s story, and the U.S. government’s handling of his case, with those of Edward Snowden and Bradley (now Chelsea) Manning. According to Ellsberg, “whistle-blower” may now carry a more positive charge than it did when he earned the title, but the outcome looks far bleaker for those two who also defied authorities to serve their country. (Click here to listen to audio excerpts from this interview).

Robert Scheer: [According to The Guardian,] Obama was asked: “Nixon tried to prosecute Daniel Ellsberg for the same thing and he is a …” and he was going to say “hero,” and then President Obama said “No, it isn’t the same thing. What Ellsberg released wasn’t classified in the same way.”

Daniel Ellsberg: It’s quite right. Mine was classified top secret … his was classified secret or less. Most of what he released was unclassified, so every page of what I put out—7,000 pages—was top secret, and that was the most you could imagine distributing at that time with a Xerox machine. I couldn’t have put out the 700,000 cables that Manning put out without digital technology.

RS: You are now accepted, even Obama was implying, as a hero. Yet, in a strictly legal sense, what you did involved a much higher degree of classification.

DE: Well, yes, everybody’s saying now that they’re trying to draw some difference; saying, for example, that what Ellsberg put out was history, which is true. The most recent [of the leaked documents] was three years earlier and some of it went back 25 years earlier, but that didn’t affect the charges. I was facing 115-year possible sentence, essentially the same as the life sentence that Manning was facing and that Snowden, I’m sure, will face. …

In my case, the initial charges … were just … three counts, which would increase to 12 felony counts for 115 years. … It is interesting that I’m getting more favorable comment, in a way, in the mainstream press than I ever have and certainly not for many years, in order to contrast me with Manning and Snowden. Actually, I’m glad that they perceive that what I did did not harm the country after this and was even the right thing to do. I’m glad to see that “whistle-blower” is now a good term that they’re actually fighting about. Are these people really whistle-blowers or not? And are they whistle-blowers or traitors? Well it used to be in my time that “whistle-blower” was a term synonymous with traitor. So that’s progress, in a way.

Of course people who say that Manning and Snowden are not whistle-blowers, that’s absurd … and to refuse to see Manning as a patriot is clearly absurd. I was called a traitor, too—and as is Snowden—but with no more basis than Manning or Snowden. It’s clear that we were people who were prepared to take a great risk in our futures, for the good of our country and for the ideals of this country, to help the democratic process change practices by our country that were despicable and criminal.

RS: And just for people who don’t know, you actually had served in the Marines.

DE: Mm-hmm. I’d spent three years in the Marine Corps, but to take that as a measure—well it’s an instance of patriotism, but I don’t like to see that as a definition of patriotism.

RS: No, I was going somewhere else with that. Then you went to work. First you worked for the government in other capacities.

DE: I worked for the Rand Corporation, doing work for the government—research and consulting for the government—and I was in the government.

RS: Right, so what people don’t understand about the Pentagon Papers case is that, in fact, you also had government clearance just like Snowden and Manning. Can you compare your level of clearance?

DE: Yes, actually, again, Manning is described as having been indiscriminate in his releases. That’s totally untrue. The fact is that Manning, like myself and like Snowden, had clearances not only top secret but higher than top-secret communications, intelligence clearances, and others. I had many other intelligence clearances that were much higher than top secret. I released none of that, and neither did Manning. In my case, I didn’t happen to see anything with that classification that seemed to me to require public knowledge and Snowden did, obviously. The material he put out has that classification, higher than top secret, and should not be classified at all, revealing practices by the government that are clearly unconstitutional and should never have been classified; but they were sure to be classified precisely because they had to be hidden from courts and from the public.

Snowden undoubtedly—unquestionably has far more information than has come out or than he will put out because as he says, as I felt myself, there’s information there that deserves to be secret …The same is true for Manning. He didn’t put out anything over-secret, and he selected, actually, a body of secret cables that he determined did not even include restrictions on distribution, like “no dis” [no distribution] or “lim dis” [limited distribution]. …I was surprised to see that there was so much incriminating information at that level that was merely secret.

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Apparently, it has gotten so routine to report war crimes, like turning people over to be tortured by the Iraqi authorities and so inconsequential that they are in fact keeping a body count of civilian deaths, which the army had denied keeping. That figure was as high as it was for the army’s secret accounts, 60,000, even though that is probably far less than a tenth of the actual civilian casualties. Still, it’s 60,000 more than they had reported to the public. In short, he had reason to believe that there was nothing in there that would be more than embarrassing to the United States government, and so it has proved. They haven’t come up with evidence of a single person being found physically harmed as a result of his disclosures.

RS: That’s interesting because, really, what was involved with the Pentagon Papers was—again, they said you’re endangering the country, and so forth—but what you were revealing was being held back because it was embarrassing. …

DE: Yeah, which is why most stuff remains classified, or is classified in the first place. I’ve asked myself often, why do they classify virtually everything? And … the answer I finally came up with was they don’t know what will prove to be embarrassing two and five and 10 years down the road, which predictions, which estimates, which recommendations will look either foolish or criminal … but especially just embarrassing. So, classify everything, and then just put out at the time, or later, what is favorable to the government.

RS: Let me ask you about this question of war crimes, your obligation and the different oaths people take. In the case of the Pentagon Papers, you did show evidence of war crimes.

DE: … What I had were high-level decision papers, estimates by the joint chiefs, recommendations by the joint chiefs, decisions by the president. So, high-level decision-making [about] the way that Congress … had been deceived about the reasons for getting into the war and reasons for escalating. … [W]hat it showed was a crime against the peace, basically, the supreme crime of the aggressive war …

We didn’t have, say, rapes, individual killings of civilians, and so forth … In the case of Manning … he does have vast amounts of war crimes … murdering of a dozen or so Iraqis at a time, women and children, shooting them in the head with their arms handcuffed behind them, calling it an airstrike to cover up the atrocity. That was one particular atrocity revealed by Manning that lead to Maliki, the prime minister of Iraq, being unable to allow Obama to keep 10,000 or more troops in Iraq past the deadline that had been set with immunity from Iraqi prosecution, because what Manning showed was that this had not been prosecuted by the United States and had been lied about. It’s clear we weren’t going to prosecute, so he couldn’t give immunity under political pressure in Iraq. … [[Manning’s] prosecutors were not able to come up with a single example of an American or any other person being harmed physically by Manning’s revelations. Not one.

Another aspect of Manning’s revelation … was that … his goes into the current Obama administration. I don’t doubt that one of the reasons that Obama pursued him so relentlessly here … is that he was accused in those documents, in effect, of war crimes himself and could be brought before the international court in the Hague for a policy of systematically handing over prisoners, no matter how innocent, to Iraqis to be tortured—that’s illegal. [He could be accused] of a policy of refusing further investigation when reports were made of this, which is an illegal order. Manning actually is the one person who correctly disobeyed that order and revealed it and, of course, revealed the wanton destruction of civilians. …

RS: It’s interesting that you talk about war crimes and obligation to the law. The Nuremberg principle, which the United States gifted to the world, or codified for the world … in Article 4 … says that the idea that it was an order is not an excuse.

DE: Obeying an order is not an excuse … an illegal order.

RS: Yes. And that in fact you have an obligation to … disobey the order. So what you’re saying when you say Manning had knowledge of a war crime [is] had he not released that, he could have been judged guilty under the Nuremberg principle.

DE: Yes, it has to be a blatantly illegal order; obviously troops are supposed to give the benefit of the doubt to their superior officers, but there are cases like the video … where actually it is quite blatant, and, of course, the soldiers should have refused orders or the atrocities that were carried out.

RS: So now you actually went down to the trial, didn’t you?

DE: I was at one of the pretrial hearings and I was there for the first day of the trial. One of my problems though is that the acoustics were such in that little courtroom I could hardly hear anything and I wasn’t able to talk to Manning. I tried to at one point and was jerked out of the courtroom by two big, large guards immediately. …

RS: And you were actually free on—

DE: Oh, I was totally free during—from the day that I was arraigned … from that whole period of two years that I was under indictment, I was free to go to rallies, demonstrations, talk on the interview, and actually while the FBI was looking for me, I was on prime-time television with Walter Cronkite. …

RS: Snowden was working under an NSA contract. What people forget about your case is that you also had a—

DE: Yes. I too—you know, Snowden made the point, very telling point, one of the things that he thought was wrong in the situation was that he, working for a contractor … was one of a thousand people at least who had full access to the files of everybody going up to the president. And he said it was not right … Well, in my case, I felt I’m reading material that the public should have and above all the Senate should have—I gave it to the Senate, but I gave it in the spirit [that] it’s not right that I as a contractor have access to the top secret history and that Sen. Fulbright does not, and when he asked for it, four different times from Secretary of Defense [Melvin] Laird, he was simply refused the information. He could only have gotten it through me.

RS: Now we should mention that Senator Fulbright from Arkansas was, in fact, the chair of the—

DE: He was the chair of the Senate Foreign Relations Committee. … So the Senate Foreign Relations Committee was not even able to get it on a classified basis, see. Laird [decided] it was not … in the interest of the country for the Senate to have this information. Well, I thought it was … And for people to say that this information Snowden put out, or Manning put out, could have been dealt with in some different way, are just totally off base. What Manning and Snowden were well aware of was that there was a cover-up on this information going up to the highest levels … Snowden did see … that Obama was not correcting these crimes and errors and unconstitutional action, so he felt he had to do it. Well, they were absolutely right; the idea that there was an alternative channel is simply false.

RS: This is a critical point because … no one can deny that this information is useful to the American public becoming an informed public, which the founders obviously thought was the essential ingredient for a democracy.

DE: See, what else people are always saying was Snowden, or Manning, elected to give this information out. And of course they are ignoring when that comes out in the entire vast executive branch there’s exactly one elected person, or two when you include the vice president [who are] … in the decision process … who have actually been elected for this. And then the next question is, did we really elect them to lie us into a crime against the peace into an aggressive war and cover it up indefinitely, is that what we elected them to do? Is that within their legitimate right?

RS: What is a crime against the peace? … What does that mean? Does that have legal—

DE: That’s the legal term under the U.N. for what used to be called war of aggression, and it’s a war; it means in a war initiated not in response to an attack or an imminent threat of attack and not authorized by the U.N. Security Council. And of course Iraq falls outside those requirements. … [It’s] what was called at Nuremberg a crime against the peace … , which carries within itself all the others that are associated with with war crimes, supreme crime.

RS: Let me just ask you a question—trying to understand Manning, understand Snowden—you were one of the best and the brightest, right? Use [writer David] Halberstam’s—

DE: Yeah, who came up with that phrase? Halberstam?

RS: Halberstam.

DE: Yeah. Although I might say in one conversation I had with [Sen.] Gene McCarthy … he came up with that statement … “You were one of the best and the brightest.” … and I remember my answer to him: “We weren’t the best and the brightest.” I said, “Every one of our spouses had better judgment than we did. And our children.” And I said, “Yes, we were smart. But we lacked wisdom and foresight and scruples.” … And McCarthy was taken aback at my saying that and then he said, “Well, that just about covers it.” And I said, “That’s right.”

RS: But I was using it in a sense of being credentialed and you, as opposed to Manning—they say, “Who is Manning? He’s just a lowly private and he dropped out and so forth. You really were up in that other level … Kissinger attested that you were one of the really sharp people at Harvard—

DE: He even paid me the compliment of saying that I was the brightest student he ever had, which is compliment because I was never a student of his for one minute, so he chose to take credit for me.

RS: So my point is that the question is who are these people and why do they take these risks? And then there’s always the hunt to find some aberrant personality or something. And in your case, you know, it’s now come to be understood by many people … that what you did was right—

DE: I faced the same charges as Manning. I would have gotten the same sentence as Manning if governmental crimes against me had not been revealed … I do not believe that Obama thinks what I did was right … [H]e said to people who were in favor of transparency who urged him to enact whistle-blower coverage for national security whistle-blowers, and… Danielle Bryan … from POGO [Project on Government Oversight] said he got very exercised at that point, and he said people who leak are criminal.

Now, actually that’s a very problematic statement from a constitutional point of view. It’s never been tested by the Supreme Court, and in my day, the leading scholar of information law, Melville Nimmer, did an amicus brief and he also an article in the Stanford Law Review which said the acts of which Daniel Ellsberg is accused either are not applicable under the Espionage Act [or] the Espionage Act should not apply to those. Or if it does, the Act is unconstitutional. And as Strong, Harold Edgar, Benno Schmidt were great scholars of this later, also said the act is on it’s face unconstitutional as applied to leaking, which was never the original intent of the people who passed that law. And [its] use against people who disclose information to the American public, like me or Manning or Snowden, is unconstitutional.

Now the Constitution hasn’t changed. It’s true that the legal climate has changed a great deal and the makeup of the Supreme Court has changed, but I think that argument is very sound. So I think the Espionage Act charges of which Manning was just convicted and prosecuted are unconstitutional. And the Supreme Court may or may not find that way. But I think they should.

But we come back to Obama. I think Obama’s interpretation is no, these are criminals… and he has decided to do what no previous president did … which is to say prosecuted multiple whistle-blowers under the Espionage Act. He has brought seven indictments. … Before him there were three presidents who each brought one … It’s an unprecedented campaign against whistle-blowing. And [Army Judge Denise Lind] is in a chain of command where she heard her commander in chief say [Manning] was guilty before he was even on trial. But I think he believes that, definitely. I have no question at all that Obama would not only have indicted me for the Pentagon Papers now … even if it was before him, and I have no doubt that he would have sought a life sentence for me and believed I deserved it.

RS: The response of establishment, so to speak, is to try to separate you from these two fellows –

DE: No, I feel a very great identity with these two particular people, precisely because … they chose to put their lives at stake. Most leakers don’t put out enough material to make it sure they will be identified. … These other people didn’t put out 700,00 cables as in Manning’s case or communications intelligence like Snowden or 7,000 pages like me, so there is a difference there. And we all had to expect that we would face a life sentence.

RS: Yeah. I’m just wondering in your mood, because I remember when you were going to court here in Los Angeles, and I knew you then. When you went to the trial of Manning, what was your emotional feeling?

DE: Oh, the trial, no I didn’t have any particular feelings about it. … People who think that a trial will be a way to educate the public, I never had much expectation of that, and certainly my trial did not fulfill that. … The only part of my trial that I put in my memoir was the last 10 days of wonderful revelations of government crimes day after day.

RS: For people who don’t understand this … you also didn’t have an outcome in your trial on the merits.

DE: [The judge, Matt Byrne, was offered a job by Nixon to head the FBI]. And when we moved that his being offered that during the trial, was a grounds for dismissal, he dismissed that motion. And of course people also think, too, he dismissed it when it came out that [Nixon ordered the burglary of] my former doctor’s office. … No, the trial went on wonderfully for another couple of weeks after that. It was only when it turned out that I had been overheard on warrantless wiretaps, which were then illegal.

RS: Well we have not had a legal test of your case.

DE: No, oh that’s right. Oh, now let me tell you something that is on that point that really is almost news; it’s going to come out. I was in touch about a year ago with David Treiman—I’ve talked to him several times—he was the [clerk for] Judge Byrne in the trial … and by coincidence he had been a student at Harvard Law School of both Leonard Boudine and Charlie Nissan.

RS: These were your lawyers.

DE: My lawyers. Okay, so … this was Byrne’s, I think it was literally his first case on the bench, so Charlie Nissan and Boudine made a motion to dismiss the Espionage Act charges on the grounds that the act was facially unconstitutional, [and] that applied to me or anybody else who disclosed information to the American public. Treiman told me that he wrote a memo to Byrne saying that, from his research on this, it was right. He looked up, of course, the references they were giving him in their brief, and they were right: the Espionage Act, which was the heart of the charges against me, should not only dismissed in my case but should be found facially unconstitutional. Meaning just out.

And his impression was that Byrne was very sympathetic, agreeable to this but did not want to start his legal career in his first case by calling a major law unconstitutional at the beginning of the case. So he said he would take that under advisement and would decide it based on the evidence in the trial. And that’s called an “as applied” challenge to the Constitution as opposed to a facial challenge. … [T]he facial challenge says under all circumstances this law is unconstitutional because it threatens everybody. It chills free speech just by its existence because it presents people with a threat of being prosecuted, and that’s still true. The … [“as applied challenge says that] under some circumstances it might be constitutional, but under the circumstances being presented, it’s unconstitutional. … So he took it as an “as applied” challenge, and he would decide at the end of the case. Well since the case was dropped for reasons of these government crimes. …

RS: But you’re referring to the break-in. …

DE: Well there was a whole series, what he [Byrne] called the totality of circumstances, [to] offend a sense of justice … [not] the break-in to the psychiatrist’s office alone—that had come in two weeks earlier—then they found a CIA profile that had been done on me against their charter, which forbade them to do operations on an American citizen. Then had also supplied the burglary with equipment, and then the warrantless wiretaps against me. And then the critical thing was they couldn’t find the records of the warrantless wiretaps.

The reason for that was that because they revealed illegal acts ordered by the president. [FBI Director J. Edgar] Hoover had kept them in his personal safe in his office outside the FBI system, which they were supposed to use to record wiretaps. And when Nixon realized that Hoover might use those taps as blackmail evidence against him, he ordered [one of his lawyers, Robert] Mardian to have the tapes removed from Hoover’s personal safe so that Hoover couldn’t use them against him. [William C.] Sullivan then, the [FBI’s] number-two man who wanted to replace Hoover, then stole the files from Hoover’s personal safe and gave them to [Nixon aide] John Ehrlichman, who kept them in a safe in the White House.

So, at the point … Byrne suggested to my lawyers that they might want to reopen the brief for dismissal of the case. And we had a big discussion then as to whether we should or should not go to the jury. And of course, had we gone to the jury then if I’d been found guilty then, well then he could still have said the charges were out on grounds of unconstitutionality. We didn’t know he was entertaining that possibility. … And if Byrne had followed [Treiman’s] advice … that would have settled that for the future. Or, if on the contrary, I had been found guilty it could have gone up to the Supreme Court, and at that point with [Hugo] Black and [William O.] Douglas and some other very good First Amendment people on the court at that time, the chances are likely that they would have found it unconstitutional. Now that is less likely now –

RS: Switching from you and Snowden and Manning to Julian Assange. He is really–

DE: Who is more in the position of say, the New York Times –

RS: Exactly what I was going to say, that he is actually the publisher, and that confuses people about these cases because in fact he has a very strong position. I mean –

DE: Yeah he would have, if Bill Keller and others of The New York Times were willing to say that he was a journalist. Keller said, “He’s not a journalist by any standard that I know of,” which is a stupid thing to say, which is just trying to clear The New York Times from the grand jury investigation. …

RS: But clearly Glenn Greenwald, Assange fall into, in the modern publishing environment –

DE: Well, Assange is a publisher and Greenwald is a journalist. Up ‘til now a columnist and now an investigative journalist.

RS: Yeah. So, what I’m trying to get at is that your position really is comparable to that of Snowden and Manning, right?

DE: Yes.

RS: And Assange and Greenwald should have at least the protections that The New York Times had.

DE: Yes, definitely. Absolutely, as much as they do.

RS: And The Washington Post.

DE: But the Times no longer has as much protection as they used to. And that’s where they should realize that rather than trying to throw Assange to the wolves by distinguishing him from them, they should realize that there is a direct threat to them. That’s the truth. And to you. This is, ten years ago you wouldn’t have said that. But now there’s every reason to think the administration is going to go after not only sources but journalists and publishers. And the reason for that indication of course is they’re calling James Rosen of Fox News an aider and abettor of Steven Kim. Which is a charge that could be made against you as an investigative journalist as you know, one of the few after all, for all the classified material you put out in the past.

RS: Yeah.

DE: And, an aider and abettor. And here’s the thing, the language of the act … 18 USC 793, paragraphs D and E, which is the only act I can roll off like that because it’s the one I was the first one to be prosecuted for, but if you read that language it applies just as well as to a journalist. It makes no distinction of journalist or anybody else. Anyone unauthorized to have this information, who retains it or gives it to anyone else unauthorized — like their wife or their child or their husband —that applies as well to a reader of The New York Times, that language, as it does to a journalist. Now, that might seem ridiculous, you know, that they would ever do such a thing. But you may have noticed, people in the Armed Services are forbidden to read, or download on their computers The New York Times, or The Guardian. Right now it’s The Guardian that’s publishing this stuff. So they’re banned from downloading it –

RS: Yeah.

DE: … James Risen … is being ordered by the circuit court to reveal his source … or face contempt or go to prison. So they’re using the grand jury to say, “Just tell us the name of the criminal who committed this offense.” And then Rosen is being directly—in an affidavit—described as a criminal himself, an aider and abettor. The next step will definitely not end with Assange. And they start with Assange of course, who did exactly what The New York Times did: same everything. … They are counting on enough journalists distancing themselves from him to make it look as though this is not a foot in the door. But that’s what it is; it’s an entryway into prosecuting journalists.

RS: You know the interesting thing about that aspect is it’s the selective prosecution. Because the fact is, and I’ve argued this, when it comes to national security issues, foreign policy issues, an overwhelming source of information is classified and routinely leaked –

DE: Yeah, yeah.

RS: And an example I use, and I’ve never seen anyone refute it, but I happened to get off an airplane in San Jose. I was going up to see Sid Drell at Stanford; I was an Arms Control Fellow along with Condoleezza Rice [and others] and [nuclear scientist] Edward Teller was on the plane. … And Edward Teller said, “Oh, where you going?” I said, “I’m going up there to Arms Control Center … and he says, “Make sure, Sid tells you about the great results we just had on lasing with the Cottage Test.”

DE: Really? That sounds pretty classified.

RS: Classified?! It was the biggest secret that an enemy would want to know. … If we had actually produced this X-ray laser, you know, boom! … He would routinely make these kind of comments and so forth. And when I went up there and Sid Drell came out and I said, “Hi Sid, just ran into Edward Teller. He said you’re going to tell me the great results that they had on the Cottage Test.” And he turned white and said, “Outside!” and we walked outside. He said, “What are you talking about? This is the biggest secret. I’m not going to talk about that. What was Teller—he must be losing his mind.” … Well, I wrote about it.

DE: Yeah.

RS: Teller didn’t even tell me it was off the record.

DE: Yeah.

RS: I did write about it and what happened was that an investigation was done and it turns out they didn’t get the factor. The machine, the machinery monitoring the results had been distorted by the test.

DE: Oh so they didn’t even have great results.

RS: No, it was false.

DE: That’s classified [laughter].

RS: Interestingly enough, he was only leaking it because he thought they did get great results.

DE: Well, I said this whole system is an information management system, which, by the way, serves the press to some extent too. It means that when they tell you something like that as a scoop, they’re giving you something that makes you indebted to them, basically, as a current and future source, which you won’t get anymore if you print something they don’t want. … Now it’s something they want out. But they want the right reporter to get it. They don’t generally give it to you or to Sy Hersh, you know. They give it to somebody who’s a favorite.

RS: Right.

DE: So it seemed like a moot issue in a way—you know whether it’s constitutional or not – they’re not using it against journalists. … But they weren’t using it against leakers, either. You know, there were lots of leaks.

RS: Yeah. Every day you pick up the paper.

RS: … You almost cannot pick up a story on foreign policy, whether it’s Egypt today or anything else that does not have anonymous sourcing … or other classified information that they’re revealing.

DE: Yeah. Okay, what Obama is doing … is to try to end investigative reporting of the national security complex or Homeland Security which covers just about everything now as we know from NSA, you know the excuse of terrorism gives them the change to survey everybody whether they have access or not. But what he’s trying to do is not only, is to criminalize—not only in the letter of the law but by actual prosecutions – criminalizing putting out classified information that they don’t want out … which tends to be exactly what the public needs to know because it makes them accountable. They … want to put out classified information they have to explain themselves, to support their policies, to counteract critics and so forth. … But you can be sure they will never prosecute for that because those are leaks that are, in effect, authorized. … [Under] regulations, no leak to a person without a clearance is authorized; it’s all unauthorized by the regulations, but in fact they do that every hour of the day and they will never prosecute for that. So you have selective prosecution there by not prosecuting authorized leaks. …

So, coming back to Manning for a minute 4,000 Americans died – troops – and hundreds of thousands – and I really believe the estimates of a million and a half are better estimates … of Iraqi civilians, plus the refugees, plus the … tens of thousands at least, of American troops who were subjected to post traumatic stress and suicide because of atrocities they’ve committed in many cases or that they’ve witnessed. …

Not one person being indicted for getting us into that or for pursuing it … those people died because there was no official – at high level – with the moral fiber, the moral courage, of Bradley Manning or of Edward Snowden to warn us of what was coming out. And there was no way to get that information unless someone took the courage of risking his or her own career or prison to do it. … I would say in that context where not one person had the courage [to do]what he did and not one person has been indicted, he does not deserve one day more of jail.

RS: See that’s –

DE: But … the prospect of that … did not deter Snowden.

RS: You know it’s interesting ‘cause always put in terms of what’s the cost, what’s the price, the real cost . And this is what I think was involved in the Nuremberg principle – it was the distorting of the national debate, undermining any kind of accountability in real time to your own people. So I mean, really, that was the basic thing, “Did you know about the concentration camps and why didn’t you” –

RS: … The power of reading the Pentagon Papers, for me … clearly this was an intrusion into a nationalist situation.

DE: You know what got me more than anything else … was reading the first volume [of the Pentagon Papers] … about the French period and our support for the French, which I put off reading until the last. I read everything else first, on the assumption that that early stuff was less relevant. And what did it show me? It … confirmed with top-secret official sources, top-secret at the time and still top-secret 25 years later, what you had said in your pamphlet [“How the U.S. got involved in Vietnam”] for the Center for [the Study of] Democratic Institutions … about the origins of the Vietnam War. And I read that, I think.

RS: It was published ’65.

DE: My guess would be that I read it in ’65 … just as I was going out to Vietnam, it might have been a little later – and my thought was, “Gee, could this be right?” I hadn’t heard any of this. Could this be true? I mean, my God, this is very different from what I’ve been reading at the time, you know in ’65, about Geneva and other things. Actually [Secretary of State Dean] Rusk continued to say in effect, that Geneva had established two countries, two neighboring countries.

RS: Yeah.

DE: Remember he was always saying, “All we’re asking if for them to leave their neighbor alone.” Remember that? And he was always saying that in top-secret discussions as well as publicly. Well, what you were revealing and of course what turned out to be true was: Wait a minute, there was never supposed to be two separate, neighboring countries. There was supposed to be one country. And all Vietnamese recognized that. Well, I’m reading that then, in top secret, and it’s confirming what you were saying, and it wasn’t that I disbelieved you, it just was, could this be true? I couldn’t just take it for granted it was contrary to what I’d been hearing otherwise. And so when I read that, I thought, that means that this entire thing has been illegitimate from the very beginning. This was not a noble cause that went wrong at some point, or that cost too much but as was implied in your [pamphlet] which I think you were the first to bring that out as a journalist. …

[What] we were doing, was totally illegitimate. … So to me, that meant that every person killed in the war on both sides was a result of a U.S. crime here and was murder. … And .. I didn’t want to be part of murder anymore. So that’s when I thought, okay I have to do anything I could even if it puts me in jail for life. … And of course that’s the mood, correctly, that Manning was in, or Snowden, as [they] saw this unconstitutional behavior. But Manning was looking at a war … of continuous atrocity and being lied about … and he wanted to shorten it, and he felt it was worth his life to … reveal this to people, and that could form debate and that would change it. It wasn’t just debate that he wanted, he wanted peoples’ lives to be saved.

RS: Right.

DE: Okay, going back, to the Nuremberg aspect of this let’s look at one of the people who actually managed not to get the death penalty at Nuremberg: Albert Speer. And the reason he didn’t get it was that he was repentant … and he was awakened to what he had done. And what … he claimed ––¬¬¬ and this is something people question –– [was] that he had managed to remain ignorant of the details and the process of the death camps, specifically. Everybody thought of him as the intellectual of the Nazis and … Speer’s answer was, “There is no correlation between intellect and decency.” And that’s true.

RS: I just want to push this last point. Because the argument always is you’re going to weaken the society. The assumption of the U.S. Constitution is you are going to strengthen the society [by protecting freedoms].

DE: … Our founders, with all their faults and their shortcomings, had some brilliant insights on how to pit one group of ambitious men against another group of ambitious men: Congress vs. the executive [branch] and the judiciary and the fourth estate. So, the idea of a fourth estate, that’s what [Thomas] Jefferson meant when he said, “I would choose newspapers without a government over government without newspapers,” and he was right. He said that without a free press that can inform the public, you will have corrupt government … you will have tyranny.

RS: Right.

DE: And now, what he didn’t know was that tyranny may end the human species. That wasn’t possible then, now it is. … Unless the people press Congress to investigate the secrecy system and to investigate the nuclear system for the first time. … It will not happen without more Bradley Mannings, more Edward Snowdens informing the public … to press Congress to … inform itself and change these policies.

And so, let me come up with a very concrete point here. Obama’s prosecutions, of which Manning’s is one out of seven so far— with another sealed indictment probably against Assange which would make eight— is in the process of cutting off investigative journalism here that could possibly bring about this change. It’s of the most serious grave threat to humanity and not only to democracy, as in Snowden’s case but actually to humanity, as in the nuclear issue, and also we’re not going to change policy as long as we continue the imperial policies of which Manning became very conscious. …

Very specifically, nearly every lawyer, building on what we covered so far … has given up on the notion of keeping the Espionage Act from being used against an official. The line of defense has always been, and is now: let’s keep it from being used against journalists. But let’s concede that either the Espionage Act or an Official Secrets Act can apply constitutionally, despite the First Amendment, to officials.

I say—and I’m going to pursue this very much in the next year—we can’t afford that. Now that they’re actually using it against officials and … now that they can find out the officials by the NSA [through] surveillance … they’re prosecuting the sources; we can’t accept that. … We have to use the First Amendment as freedom of speech as well as the press. And the speech includes whistle-blowers within the government who see dangerous or criminal behavior that’s classified. … The administrative penalties of taking away their clearances, keeping them from access, losing their jobs, losing their income, losing their marriage as a result, will deter far too many potential whistle-blowers.

If [Congress passes] an Official Secrets Act that says not journalists, but officials who gives secrets are criminals … Obama would sign that. Congress once passed that in the year 2000, November … and Clinton vetoed it. Obama would not veto that. So you would have the act, [and] in that case, then people have to violate it. And go to prison. Just as people had to violate, and did violate the Fugitive Slave Act … after the Dred Scott case … and Jim Crow laws were upheld as constitutional … year after year, decade after decade. …

But before that, we really should try keep such laws from being upheld. We should try to get them repealed, the law should be found unconstitutional. … We cannot allow it to be regarded as criminal to put out classified information regardless of intent. There has to be recognition of intent. … It’s not enough to say this information … could be used to the harm of the United States. … Any page of the Congressional Record, any front page of a newspaper could be used. … The restriction to be used [has to be] basically espionage, revelation of classified information with intent to harm the United States or help an enemy of the United States in wartime; that’s a law that could be constitutional in my view with the First Amendment.