False Division: Ellsberg A Hero But Today’s Whistleblowers Villians

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Persistently Distinguishing Apples from Apples: Jeremy Hammond, Chelsea Manning, Edward Snowden and Daniel Ellsberg

There exists a puzzling yet repeating trend among commentators, politicians, and now federal judges. It is to distinguish Daniel Ellsberg, the whistleblower of the Pentagon Papers (and often-hailed hero), from actors like army whistleblower Chelsea Manning, NSA whistleblower Edward Snowden, and recently sentenced hacktivist Jeremy Hammond. This is notwithstanding the fact that Ellsberg vocally supports and identifies with all three. The differential treatment was first acknowledged two years ago by journalist Glenn Greenwald, responding to reports on how Manning was contrasted to Ellsberg. He called it “intellectual cowardice.” Today, the persistence of this argument highlights a continuing strategic challenge for opponents of whistleblowers of government misconduct. How can these opponents distinguish Ellsberg, a hero, from those they seek to vilify for engaging in the same character of activity?

Hammond pled guilty in a plea agreement on May 28 to one count of conspiracy under the Computer Fraud and Abuse Act (“CFAA”). The defense in the case portrayed Hammond as an activist with a noble vision, while the prosecution cast him as a recidivist criminal bent on causing mayhem. Public supporters of Hammond wrote in droves expressing solidarity, and attorney Elizabeth Fink read several of their letters aloud at the sentencing. One of those letters was from Daniel Ellsberg:

“As the first person prosecuted in the US for unauthorized disclosure, I continue to be a supporter for the need for whistle blowing to maintain a constitutional republic and avoid grave governmental abuses. My decision to go public with the Pentagon Papers was a difficult one. At my own risk, I released them, just as Jeremy Hammond has done. I believe the actions taken by Jeremy Hammond need to be viewed in a context that considers the profound consequences of private surveillance of political activists in the United States.”

Judge Preska distinguished Hammond from Ellsberg, saying that “there’s nothing high-minded or public-spirited about causing mayhem.”

“These are not the actions of Martin Luther King, Nelson Mandela, John Adams or even Daniel Ellsberg.”

Daniel Ellsberg was a military analyst who in 1971 leaked the top-secret Pentagon Papers, which detailed high-level government deception of the American people during the Vietnam War. He was a Marine turned civil servant who worked for government contractor RAND. Ellsberg said that “I never thought, for the rest of my life, I would ever hear anyone willing to do that, to risk their life, so that horrible, awful secrets could be known.” But that is precisely what Manning, Snowden, and Hammond have done. They have largely sacrificed their careers and connections with families and friends, entering confinement or fugitive status, to uncover wrongdoing.

In the past, opponents of whistleblowers have tried to distinguish Ellsberg’s situation in a number of ways. They claim that actors like Manning and Snowden were “reckless” in releasing large swaths of documents without personally reviewing all of them individually. President Obama incorrectly distinguished Manning from Ellsberg based on the classification of the leaked documents, claiming that Manning released more highly classified information (in fact, Ellsberg released 7,000 pages of top secret documents, whereas Manning released none). Even Floyd Abrams, who represented The New York Times in the Pentagon Papers case, argued that Manning “behaved with a devil-may-care obliviousness” to national security by leaking to an organization like WikiLeaks, while Ellsberg demonstrated “restraint.” Though Hammond was a hacker while others accessed documents in their professional capacity, stressing this ignores that the government actually charged Manning under the CFAA with “unauthorized access.” Similarly, Ellsberg used a briefcase to sneak documents out of the RAND building over a period of months, since only a handful of officials had the authority to read the Pentagon Papers. In Ellsberg’s own words:

“The public has been very misled about Manning . . . They talk about his being indiscriminate. That’s simply false. Like me and like Snowden, he had access to communications intelligence higher than top secret. He gave none of that out.”

Further, another tack suggests that Hammond, Snowden, and Manning should have gone through official channels rather than leak documents in the manner they did. But this ignores that they tried to do this and were met with frustration and dismissal. Hammond articulated his disillusionment engaging these issues within an obstinate political process. Manning, in a chat with hacker Adrian Lamo, said that authorities in official channels “didn’t want to hear any of it” and told Manning to “shut up.” Past whistleblowers have repeatedly failed or met reprisal when using official channels. Even Ellsberg told NPR that his extent of attempting to go through proper channels was the “wrong way” and cost thousands of lives.

Judge Preska’s flat dismissal of the comparison between Ellsberg and Hammond, and her refusal to mitigate Hammond’s sentence in light of his underlying aims, ignore that Ellsberg was, like Hammond, demonized as a criminal by the U.S. government. He was tried on 12 felony counts (later dropped) under the Espionage Act of 1917, the federal law passed during the socialist scare of World War I that has since been aggressively used by the Obama administration to punish whistleblowers as spies. Hammond accessed and leaked information for political rather than economic purposes, with a clear message of promoting transparency regarding unlawful surveillance by corporations. The laws broken by Hammond, Snowden, Manning, and Ellsberg pale in importance to the crimes committed by private actors and the state—which is why all four men were willing to put so much at stake.

To be sure, the actions of Hammond, like those of Ellsberg, broke the law, but that fact alone does not wipe away their parallel values. Hammond’s prosecutors articulated harms such as posting credit card information and executing attacks on systems that arguably went further than the actions of Ellsberg. But Hammond pled guilty to that charge. Focusing on this ignores the real issue—whether Hammond’s intent can be used as a mitigating factor. By mentioning and distinguishing Ellsberg and then consequently refusing to mitigate Hammond’s sentence, Judge Preska at best gravely misunderstood history and at worst distorted the values for which Ellsberg stood.

Ellsberg is seen as a hero today because time has exposed the painful realities of the Vietnam War. He was right—he knew it, and he was willing to risk his career and face punishment. The strategy of opposing the good in Hammond’s actions carries at its logical end the rejection of civil disobedience. Ironically, Obama as a presidential candidate praised whistleblowing as courageous and patriotic. But now, his administration has charged more whistleblowers under the Espionage Act than all previous presidents combined. His administration is now aggressively prosecuting those that blow the whistle on private misconduct. In all likelihood, the harms done to civil liberties by the subjects of Hammond’s revelations will dwarf the purported harm he caused. Someday, time will expose the real threats of the Afghanistan and Iraq Wars, of widespread NSA surveillance, and now of potentially unbounded private corporate surveillance.

Carey Shenkman lives in New York City, and is a recent graduate of NYU School of Law sitting for the New York State Bar Exam. He has worked for the Center for Constitutional Rights, a non-profit legal organization based in New York, on litigation surrounding the Manning trial. He is a former Notes Editor on the NYU Law Review.

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    Carey Shenkman’s claim that Manning tried to go through official channels rather than leak documents, but met frustration and dismissal, is woefully incomplete.

    As I recount in my book “Manning: The Soldier Who Leaked on His/Her Country,” the private’s only such attempt occurred in March 2010. An S3 (operations) officer asked him to evaluate a report describing the arrest by Iraqi Federal Police of suspects for printing anti-government literature. Manning determined that, as he put it, “none of the individuals had previous ties with anti-Iraqi actions or suspected terrorist or militia groups.” When he took those findings to S3, Manning was told to “drop it” and help locate more shops printing anti-government literature.

    Concerned that suspects “would be arrested, and in the custody of this special unit of the Baghdad FP, very likely tortured and not seen again for a very long time, if ever,” Manning complained to his NCOIC, who took no action. That was the highest up his chain of command—one level—that Manning went before concluding, “No one wanted to do anything about it.”

    The S3 (operations) officer who’d assigned Manning to evaluate the report was not part of Manning’s S2 (intelligence) unit. Manning did not inform any of the warrant officers or commissioned officers above him within S2. He did not notify the Inspector General. He did not reach out to a member of Congress under the Military Whistleblower Protection Act of 1988.

    “I had a lot of alternatives,” Manning testified at his February 2013 providence hearing. “I have the chain of command as a first alternative. I could have went to the chain of command and asked for guidance on how to release certain information. I had the Public Affairs Office. I knew where the Public Affairs Office was, and they actually have the authority to officially release sensitive information. And there is also the Freedom of Information Act. There were other avenues.”

    “And you didn’t exercise those?” asked the military judge.

    “No, Your Honor,” Manning replied. “Your Honor, regardless of my opinion or my assessment of the documents, [disclosing them is] beyond my paygrade. It’s not my authority to make these decisions. Again, there are channels that you are supposed to go through. And I didn’t even look at the possible channels of having this information released properly.”

    Later, during the punishment phase of his trial, Manning told the court, “The last few years have been a learning experience. I look back at my decisions and wonder how on earth could I, a junior analyst, possibly believe I could change the world for the better over the decisions of those with the proper authority. In retrospect, I should have worked more aggressively inside the system. As we discussed during the providence statement, I had options and I should have used these options.”