Fifty years ago, Daniel Ellsberg, an economist and military analyst, created a national controversy that resulted in a landmark press freedom decision by the US Supreme Court. He did it by leaking a 7,000-page government report, photocopied—by him—on an office Xerox machine. No docs on a thumb drive. No reports uploaded to Dropbox. Just boxes and boxes of paper—the Pentagon Papers.
The Chicago Humanities Festival is celebrating the 50th anniversary of the Pentagon Papers with its Deep Dive: Speech, curated and hosted by Geoffrey R. Stone, University of Chicago professor and co-editor of National Security, Leaks, and Freedom of the Press: The Pentagon Papers Fifty Years On. Co-editor is Lee C. Bollinger, president of Columbia University and Seth Low Professor of the University. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago.
Stone hosted the first in a series of three events focused on freedom of press and speech this week. He talked with Ellen Nakashima, national security reporter for the Washington Post, and John O. Brennan, former director of the Central Intelligence Agency.
Stone described in his introduction the vexing problem of the government’s “legitimate need to conduct its operations—especially those related to protecting national security—with the public’s right and responsibility to know what its government is doing”—and the right of the press to publish such documents even though they may be stolen. There is no easy answer to this issue, he said, and different nations embrace different solutions. He noted that the digitization of information has changed the Pentagon Papers environment. “Chelsea Manning and Edward Snowden can release hundreds of times more documents than Ellsberg and his Xerox machine.”
His opening statement in the book adds that leakers who hand over classified documents to the press can be prosecuted and punished by the government for doing so and they have no constitutional defense. On the other hand, the press that receives and publishes such documents, even if they’re classified as national secrets, suffers no legal consequences.
Nakashima, author of the essay, “Behind the Scenes with the Snowden Files: How the Washington Post and National Security Officials Dealt with Conflicts over Government Security,” described how the Post approached the Office of the Director of National Intelligence (ODNI) in 2013, about covering the files released by Edward Snowden, a former NSA contractor. The Snowden files concerned the Black Budget, a “blueprint that the nation’s 17 spy agencies submit to Congress to justify their request for tens of billions of American tax dollars.” The Post had the files and wanted to explain to the DNI how they would cover the material. After much negotiation, often heated, the two sides came to agreement and the Post published the material. Nakashima comments, “our reporters and editors took pains to protect the material, vet it for accuracy, and engage with the IC [intelligence community] to gauge the potential harm to national security” before publication.
Brennan was one of five experts from the security and journalism worlds to join the book’s editors as a “Commission” against the background of the book’s essays, to discuss how to refine the system inherited from the Pentagon Papers era. The 15-page report of the commission and its recommendations are included in the Bollinger-Stone book.
Brennan commented that over the years, far too much information has been classified without any consideration of the need for more transparency. He believes there’s a sense of insularity among people in the government’s national security agencies; they are overly cautious. There needs to be a healthy tension, he said, between the need for openness and intelligence professionals’ protection of fellow citizens.
Another clash is between mainstream media (I hesitate to tag them as “respectable”) and the huge array of sometimes ragtag online media presenting themselves as journalists. Both Brennan and Nakashima commented that in today’s internet media sphere, there are so-called news media who merely want to use leaked information to “make a splash.”
Stone said a point of discussion is whether the release of national security information should be restricted to “major mainstream media” such as the New York Times, the Washington Post, the Wall Street Journal, news and business magazines, and major regional newspapers.
Nakashima observed that it’s important to determine the significance of information disclosure. Minutiae and government gossip are leaked every day but important leaks are, for instance, like Snowden’s leak of telephone metadata collected by telecoms companies under Section 215 of the Patriot Act. (Telephone metadata includes information such as who called whom, when, and for how long.) Brennan added that there are categories attached to information that might be leaked that indicate the degree of harm that might be sustained in the case of release—confidential, secret, and top secret.
Finally, the panel discussed the concept of regulation. Stone noted that the telephone company is not responsible for what he says on a phone call to Nakashima and that was the case for the telegraph in earlier days. Nakashima pointed out that section 230 of the Communications Decency Act of 1996 was written to protect internet providers from liability for the information posted by its users. (See this Electronic Frontier Foundation explainer.) Today, since platforms such as Facebook and Twitter have grown to huge size and influence, Section 230’s protections have become highly controversial. Controversy arose during the Trump administration when the former president wanted to eliminate the legal protection that such social media sites possess under Section 230. (Stone said this topic will be part of the next Deep Dive: Speech event.)
The Stone-Bollinger book is made up of 16 essays by 25 authors, plus the Report of the Commission, and opening and closing statements. The book is divided into three sections: The National Security Perspective, The Journalist Perspective, and The Academic Perspective. Published by Oxford University Press, it’s available from the CHF’s bookstore partner, the Seminary Co-Op, for $25.
You can watch the CHF national security discussion here. Watch for announcements of the next two events in the Deep Dive: Speech series in April and May.
Refresher on Daniel Ellsberg and the Pentagon Papers
Daniel Ellsberg was a Rand Corporation employee at the time of the Pentagon Papers. He had worked for the Departments of Defense and State and spent two years in Vietnam as a government employee. He worked on the confidential Defense Department report on the conduct of the war in Vietnam. The study consisted of 3,000 pages of historical analysis and 4,000 pages of original government documents in 47 volumes, and was classified as “Top Secret—Sensitive.” Ellsberg offered the papers first to the New York Times and later to the Washington Post and other newspapers because he believed Americans were not being told the truth about the war. Ellsberg made several copies of the 7,000-page report on a photocopier. Night after night, he stood at a photocopier in an empty office and shoveled pages through and carted them out in boxes.
The case resulted in a landmark Supreme Court decision, after the Nixon administration tried to keep the papers from being published. The court ordered that publication could not be stopped. The decision stands as a major point in press freedom.
Ellsberg was charged under the Espionage Act of 1917, along with other charges of theft and conspiracy (which would have had a total maximum sentence of 115 years in prison). But because of government misconduct and illegal evidence-gathering, the judge dismissed all charges against Ellsberg.
Over the years, Ellsberg has received awards and recognition for his continuing political activism and anti-war efforts. He was born in Chicago, grew up in Detroit, and will celebrate his 90th birthday on April 7.