Ellsberg and Snowden

I just posted a revision to an overview of the law of executive power I did for the forthcoming Oxford Handbook of the U.S. Constitution.  I was honored to be asked to contribute on such an important topic.  Given the limited space I had, I did more revisions than I normally do in the process of thinking through many issues I had not previously come to grips with.  So I hope to do some posts “filling out” some parts of the argument that obviously need more attention than I could give them in the piece.

 

That said, the controversy over Michael Kinsley’s review of Glenn Greenwald’s book reminded me that I’ve been meaning for some time to note some obvious contrasts between the leakers Ellsberg and Snowden.  These occurred to me because I researched the Vietnam War in the process of writing Long Wars and the Constitution.  But these contrasts don’t seem widely known.

 

Is Snowden like Ellsberg?  Not really.  Daniel Ellsberg, widely admired for his analytical ability and knowledge of the Vietnam War, worked for years at the highest levels of government, advising principal cabinet officers like Robert McNamara.  Although this is not emphasized in summaries of his career I have seen, he continued to advise government officials like Henry Kissinger from his post at the RAND Corporation in the months that followed Nixon’s election in 1968.  After his opinion on the war changed, Ellsberg was thus in an excellent position to judge whether there were any harmful national security secrets in the DOD historical study he gave to the New York Times, known as the Pentagon Papers.  Ellsberg had to assume he might be prosecuted and the lack of such secrets would constitute a defense.

 

When the government sued the NYT and WaPo for a prior restraint, they tried to make the case that critical secrets had been revealed (focusing on the NSA!).  But there wasn’t a good case for this (although I understand David Rudenstine has argued to the contrary).  The same obviously isn’t true for Snowden.  I don’t know how to characterize his job, but Snowden was obviously light years from the kind of circles Ellsberg moved in and of course did not have Ellsberg’s access or a comprehensive knowledge of national security matters similar to Ellsberg’s.

 

The publication of the Pentagon Papers is usually put down as one of American journalism’s greatest triumphs.  But I think we can now see it involved a good measure of luck as well.  The information in the Papers was no longer significant to national security because it was old.  But it was of outstanding political relevance, because of the big debate at the time over how we got involved in Vietnam.  That’s why the Papers were a genuine scoop and why Nixon prosecuted.  To his aides, Nixon compared Ellsberg to Alger Hiss, saying “’the papers themselves didn’t make any difference.  They were old and outdated and unimportant (to national security); the key thing was that we got across the point that Hiss was a spy, a liar and a Communist.  That was the issue.  The question on this one [Ellsberg] is basically the same thing.’” (Kimball, Nixon’s Vietnam War, 256-57)

 

Snowden didn’t have Ellsberg’s ability to evaluate whether the information he collected would damage national security.  That’s why his actions strike me as irresponsible.  In the end, Ellsberg knew what he was doing.  Snowden did not.  Moreover, there are many significant differences between the Cold War and Vietnam and the war we began fighting after 9/11.  The most important difference I’ll highlight here is reflected in Nixon’s comments.  From their point of view, the war Johnson and Nixon were fighting was both external and internal.  Although they were completely wrong, they believed that the domestic anti-war movement was being led by communist agents.  Thus they felt justified in ordering the use of surveillance and other intelligence techniques normally used against foreign enemies against U.S. citizens.  Ellsberg’s trial collapsed when it was revealed that the Nixon administration had burglarized the office of Ellsberg’s psychiatrist, part of Nixon’s effort to discredit the Hiss-like Ellsberg and part of the misdeeds we call Watergate.

 

I simply don’t see the same risk of government overreaching today.  With respect to 9/11, the government has always been secure in the knowledge that, by and large, the public supports the war against Al Qaeda and, despite some early fears, there has never been any evidence of an enemy “fifth column” inside the US.  So, not surprising at least to me, there is no evidence that the government has gone overboard in using the information it has been collecting against its own citizens for nefarious purposes.  The cause of terribly destructive government behaviors like McCarthyism, the fear of communism, is missing.  In addition, all the commentary has been missing the enormous impact the 1975 investigations had on the intelligence agencies.  Believe it or not, the employees in those agencies didn’t enjoy being regarded as Big Brother.  Generally speaking, they wanted to be on the right side of the Constitution and the law.  In the sixties, some people were justified in being paranoid.  But we aren’t living in the sixties.  So count me unimpressed by Snowden and his revelations.