Daniel Ellsberg, the former military analyst responsible for leaking the Pentagon Papers in 1971, addressed a Harvard Law School audience on March 24  in a discussion of WikiLeaks, the organization that publishes classified documents submitted by whistleblowers worldwide.

Harvard Law School Professor Charles Nesson ’63, who was one of Daniel Ellsberg’s defense attorneys in 1971, introduced Ellsberg. See sidebar Q&A below.

Once called “the most dangerous man in America,” Ellsberg, who will turn 80 on April 7, engaged in a dialog with Scott Horton, a lecturer at Columbia Law School, about why states keep secrets and the consequences of this secrecy.

Horton began the discussion by referring to a leaked cable from December 2008, in which the United States embassy in Japan presciently cited concerns about the potential danger from a group of nuclear reactors near Tokyo in the event of serious seismic activity. When asked why American authorities had kept the cable secret, Ellsberg said that governments go to great lengths to conceal information that could lead to accountability, embarrassment, or blame.

“Avoiding blame is sort of the major number one principle in a bureaucracy or a politician, for that matter,” said Ellsberg. “So in this case, almost nothing is more secret than a warning within the government that a given policy which is going to be found out might be dangerous, or criminal, or wrong, (or) reckless.”

 

He posited that in fact, most U.S. Government decisions to keep information secret are directed at keeping secrets not from other nations but from Congress, public courts, and citizens—“the ones who have the votes and vote the budgets, and might possibly prosecute, and the ones whose blame is to be feared.”

Although some information, such as data on nuclear stockpiles, communications intelligence, and identities of covert CIA agents should indeed remain classified, Ellsberg said, secrets about government actions that affect public opinion and safety should not be kept.

The work of whistleblowers can potentially shorten wars and avoid atrocities, and although the stakes of disclosing unauthorized information are incredibly high, he added, it’s puzzling that so few people have been willing to take on the inherent risks to expose corruption.

Addressing the consequences of WikiLeaks’ actions, Horton asserted that the massive leak of documents helped trigger the recent revolutions in Tunisia and Egypt, as well as reveal the work of US diplomats overseas to undermine justice systems in Spain and Germany.

“I would say there’s not a single case where I see these disclosures have threatened the safety of a diplomat or undermined any legitimate US interest or security interest,” he said. “But they have actually contributed to a bit of justice.”

Ellsberg added that the consequences of keeping such dealings secret, on the other hand, pose genuine threats to public safety. His greatest concern stems from what WikiLeaks revealed as American ground offensive operations in Pakistan, a country armed with a rapidly growing nuclear arsenal and potentially allied with militant Islamist groups.

“We’re destabilizing a government now that could put nuclear weapons in the hands of al-Qaeda…” he said. “This is the most reckless, irresponsible policy I can imagine.”

In what he described as a political climate that promotes “the opacity of the government” but “the total transparency of the public,” Ellsberg warned that there now exists in the US the infrastructure of a police state, which threatens to diminish the sovereignty of the public and renders it easier to get into “irresponsible wars” like Vietnam and Iraq.

“The challenge cannot be greater. So as lawyers, I hope you will stand up for the principles of a country that didn’t make it illegal up to now to tell secrets of state that the public needed to hear.”

HLS Professor Charles Nesson ’63 recalls his involvement in the Pentagon Papers case

Harvard Law School Professor Charles Nesson ’63, founder and faculty co-director of HLS’s Berkman Center for Internet & Society, was one of Daniel Ellsberg’s defense attorneys in 1971. With Leonard Boudin, who was a visiting professor at Harvard Law from 1970 to 1971, Nesson defended Ellsberg against charges of theft and espionage.

At the March 24th event on the Pentagon Papers at HLS, Nesson introduced Daniel Ellsberg, and recalled their initial meeting: “I met [Daniel Ellsberg] before the Pentagon Papers arose as a big issue, over the question of what he should do with them, at the time when he had them, and no one seemed that interested in looking at them. It was, in fact, an exercise of Dan’s genius which I saw unfold that he took this body of documents in which he had invested himself and made it what it became. First, he was peddling them. He was trying to get the chairman of the foreign relations committee to publish them in the congressional record. He was trying to get Harvard Law School to make them the subject of our Ames Moot Court Final. … When the Pentagon Papers hit in the New York Times, all hell broke loose.”

In October, the PBS social issue documentary series, POV, aired “The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers,” with interviews of Ellsberg and  others involved in the case. Nesson, who was not involved in the documentary, described his involvement in the case in an interview this fall with Alexander Heffner.

Q. Take us back to that time, set the scene, how did you come to be involved in the Ellsberg case? When you think about the trial in 2010, what memory surfaces first?

A. My most prominent memory is the confrontation between Leonard Boudin, lead counsel for Ellsberg, and Judge Byrne…Boudin tried his best to give it to him.

Q. What did the case, if anything, illustrate about the American judicial system?

A. Hard to say. Back then, it impressed me that system could be good when run right and very bad when it was run wrong. Maybe it was a triumph for freedom of the press when the Supreme Court backed the New York Times. The rest of the press was really supportive of Ellsberg.

I wouldn’t say the trial was much of a triumph for anything. In some ways, it was a silly prosecution — won not by outright victory but by demonstration of malfeasance on the part of the government — both the Court and Executive branch. It wasn’t our nation’s finest hour.

Q. As one of the defense attorneys, how did your work on Ellsberg’s behalf inform future legal ventures here at Harvard?

A. It taught me the power of a good narrative story, in which a single man like Dan could become the focal point of a substantive message-generating-narrative. And the Courts become swept up in it as part of the story. In some ways it was consistent with the Chicago Seven Trial, with respect to the whole dimension of law as a kind of rhetorical space.

Q. Did the Ellsberg affair trigger any of your Berkman Center work on technology’s role in government?

A. Yes, certainly. I came to think of the potential of Cyberspace, in terms of the space to absorb and project rhetorical narrative.