Why Daniel Ellsberg 'wanted to be prosecuted' before his death: journalist

18 June 2023

Prior to his pancreatic cancer diagnosis, Pentagon Papers whistleblower Daniel Ellsberg, who passed away June 16, tapped The New York Times Washington correspondent Charlie Savage to help him a goal.

The 92-year-old former military analyst "wanted to be prosecuted," Savage writes in a Sunday report for The Times.

"I was looking forward to arguing in court," Savage notes Ellsberg said during a March interview, adding, "This is before I knew that my life would be shorter than I had expected."

Savage writes:

The charge he coveted was mishandling national security secrets under the Espionage Act, and his plan was to give me another classified document he had taken decades ago that he had held onto without authorization all this time. He wanted to mount a defense in a way that would offer the Supreme Court an opportunity to declare that law unconstitutional as applied to those who leaked government secrets to reporters. It is the same law former President Donald J. Trump is now accused of violating 31 times, though under very different circumstances.

Furthermore, the correspondent notes, "In examining his legacy, the scrutiny he tried to bring to the Espionage Act in making that disclosure also deserves attention."

On Friday, The Times reported:

Mr. Ellsberg was charged with espionage, conspiracy and other crimes and tried in federal court in Los Angeles. But on the eve of jury deliberations, the judge threw out the case, citing government misconduct, including illegal wiretapping, a break-in at the office of Mr. Ellsberg's former psychiatrist and an offer by President Nixon to appoint the judge himself as director of the Federal Bureau of Investigation.

"The question — which hardly anyone realizes, I would say, is a question — is whether this application of the Espionage Act to people who are informing the U.S. public, not secretly informing a foreign power like a spy, is constitutional," Ellsberg told Savage. "The issue is hardly ever raised now. It wasn't in my mind when I revealed the Pentagon Papers — I assumed I was breaking the plain language of that law, as I had been warned. And I was."

Nearly 50 years after the judges threw out his charges, Ellsberg said "that in openly confessing to retaining and disseminating the classified document without authorization, he hoped to," once again, "be charged under the Espionage Act."

Savage adds, "He wanted to be a test case to put before the Supreme Court the constitutionality of how the Justice Department has used the law to punish leaks."

The Pentagon Papers leaker asked for Savage's assistance when he realized "more reporters' sources faced Espionage Act charges, the journalist writes, "And in 2019, the Justice Department under the Trump administration crossed a new line by obtaining an Espionage Act indictment of the WikiLeaks founder Julian Assange — not for leaking, but for soliciting and publishing leaks. The department under the Biden administration has kept those unprecedented charges; Mr. Assange has delayed a trial by fighting extradition in Britain, but keeps losing appeals there."

Ellsberg said, "It's clearly overly broad and does not just apply to people like me who had a security clearance. Assange is now feeling the weight of that," noting, "For 50 years I've been saying to journalists, 'This thing was a loaded weapon looking at you.'"

He added, "I will, if indicted, be asserting my belief that what I am doing — like what I've done in the past — is not criminal," asserting "using the act 'to criminalize classified truth-telling in the public interest' should be deemed unconstitutional."

Charlie Savage's full report is available at this link (subscription required).

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