Nixon’s ghosts
Daniel Ellsberg / In 1971, Pentagon consultant Daniel Ellsberg leaked 7,000 pages of documents on the Vietnam War to the New York Times. The documents revealed that at least two successive presidents–Kennedy and Johnson–had obscured the reality of the conflict in Vietnam and led to further erosion of the public’s support for the war and, more critically, to further erosion of the public’s confidence in government. For his efforts, Ellsberg was famously described as the “most dangerous man in America” by Secretary of State Henry Kissinger. Ellsberg visits Honolulu this weekend under the aegis of the Davis Levin First Amendment Conference, which takes place 10am–1pm, Sat., 11/13, at the Hilton Hawaiian Village. Ellsberg spoke to the Weekly.
We haven’t seen whistle-blowing on nearly the scale of your effort with the Pentagon Papers. Why do you suppose that is?
I’m surprised you would say that this year. With WikiLeaks, we have finally seen it on that scale. Greater than that scale, really. With the Pentagon Papers I was limited to 7,000 pages, which I could only do because of the advent of the Xerox. I could never have put out 400,000. These are the first big-scale leaks in 40 years.
By scale, I meant more than size. To my mind, the biggest secret you delivered to the New York Times was about the relationship between the American people and their government. You were the most dangerous man in America because you revealed that four successive presidents had lied to the country.
When you frame it that way, there are several dimensions here. The dimension, which didn’t get as much attention as it should have, then or now, was about relations between the White House and Congress. The fact is that Congress had been very seriously lied to and manipulated. And the Congressional constitutional function of deciding on war and peace had been eroded.
It’s generally understood that the founders wanted to put the power to go to war in the hands of Congress, not in the executive. That was eroded starting with Truman in Korea. Vietnam was a tremendous lesson that this was something Congress should try to get back. The president took that power in Vietnam, of course, again in Afghanistan and again a year later on Iraq. The Pentagon Papers should have been a very great warning that the founders had it right.
I don’t remember a discussion of this at any length since the first Gulf War.
No, that has not been in discussion. As for right now, on the one hand of course, the WikiLeaks disclosures are about decisions at a lower level than the Pentagon Papers, in the field, but there is real news here that hadn’t been reported. Let me put it to you this way: WikiLeaks reveals a lot of torture. But the public has learned not to care about torture over the past eight years, or to care that it’s criminal. And by two presidents, not only George W. Bush. By his decision not to prosecute torture, Obama has effectively decriminalized it. He hasn’t changed the laws on the books. He just ignores them.
The other thing is civilian casualties, the discovery in the latest reports of 15,000 civilian deaths that were in no newspapers. We know this because the Iraq Body Count, which is report of every civilian death reported in American newspapers didn’t have 15,000 of these deaths. I think that counts as news. But the fact that there are five 9/11s worth of unreported civilian casualties alone is not generally regarded as news in this country.
Neither of those kinds of things were in the Pentagon Papers.
The irony is that the Pentagon Papers did not reveal any clear-cut crimes that could be prosecuted. WikiLeaks revealed a tremendous amount of torture by our allies and some torture by us. For us to turn people over and to be present for torture is as criminal under both domestic and international law as if we did it ourselves. So there is a direct challenge to enforce the law. Both international and American law require us to prosecute torture. If you can imagine the president of the United States being on trial for war crimes, Obama could be tried in the Hague right now.
Obama seems to be getting a pass on civil liberties issues.
He inherited a lawless regime from Bush, which had conducted an eight-year conscious systematic assault on the Constitution. But torture has continued just as much under Obama as under Bush. I never expected any president to give up powers that had been bequeathed by his predecessor. When I campaigned for Obama, I would say that I was not doing it because I thought he would return to constitutional government. Presidents don’t act that way. They use whatever powers anybody has ever guessed that they even might have. But I didn’t necessarily assume that he would go beyond Bush, as he has in a number of respects.
Are you referring specifically to the espionage prosecutions?
That’s only one area. He’s used state secrets privilege even more egregiously than Bush. In the assertion of the right of what they now call post-acquittal detention–
You’re laughing, but I didn’t make that up. Look it up. You will find that there is a new concept in our legal regime. It’s called post-acquittal detention. It’s not a concept that comports with the rule of law, at least not since the Magna Carta. It turns out that the Justice Department has this concept that even after acquittal, you will stay in custody if they want you there. That is simply throwing out the rule of law.
The most spectacular things of all is this: [journalist] Seymour Hersh says that under Cheney, there was a systematic assassination program. Cheney would approve these assassinations worldwide. But that was covert. Obama has declared the right to kill or capture anyone that he designates as a suspect, anywhere in the world, including in the US. And American citizens. We even have the name of one: Anwar Al-Awlaki.
No charges have been brought, no evidence presented, no nothing. The president has said, “I want him killed,” and that’s that. Well, wait a minute. That was a right of the executive that went out with King John I, 800 years ago. No king of England has asserted that right since Charles I, and he was beheaded for it.
So Awlaki’s father goes to court to ask what is the president’s authority to order my son’s death, and what are the criteria by which he’s been designated? The administration has responded by asserting the state secrets privilege. They are arguing that no court has a right to even address those questions. No previous president has asserted that. It is shocking. It is unacceptable, and it is executive tyranny. If the president can do that, what can’t he do? And I think the answer is nothing.
At long last, Nixon was right.
That’s exactly right. “If the president does it, it’s not against the law.” If you use the words “security” and “wartime,” there is no limit. I asked an ACLU lawyer if there’s a difference between John Yoo and Obama. He told me that there is one: Yoo, however dimly, located these presidential powers in the Constitution.Obama refers to statutes and doesn’t refer to the Constitution much. Maybe he’d be too embarrassed. He’s a constitutional scholar after all.
Can you imagine a scenario that leads us out?
A sex charge against the president. That’s the only thing that’s worked in recent decades.
But that won’t change anything but the officeholder. It should be possible to make a president accountable for more things than a sex act. But when you ask what does it take to limit presidential power, well, it turns out that’s pretty much it.
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