Raise your hand if you remember Daniel Ellsberg

Some of you do. He is, of course, the Rand Corporation employee who leaked the Pentagon Papers. The recent Wikileaks disclosures and the Pentagon Papers will have, I think, similar story arcs. The two situations are different, of course, but there are some parallels, enough to be instructive.

The so-called Pentagon Papers were actually a history of the U.S. involvement in Vietnam starting right after the close of the Second World War. Ellsberg was one of the authors. He thought that the work demonstrated how citizens were being lied to by the government. The Pentagon Papers were published by the New York Times, the Washington Post, and others. The Nixon administrations tried unsuccessfully to restrain the NYT from publishing what Ellsberg gave them. In a decision relying in part on Near v. Minnesota (Brennan concurrence), the Supreme Court ruled that the Times could not be restrained from publishing the Pentagon Papers. You can read a pretty fair summary of the Pentagon Papers controversy here.

In the present Wikileaks matter, the documents are already out, so there isn’t any kind of prior restraint question. But does anybody remember what happened after the publication? Or maybe as important, didn’t happen?

The New York Times and the Washington Post didn’t get prosecuted for publishing the Pentagon Papers. You can be sure that the Nixon administration would have it done so if it could have. If a serious civil or criminal case had been brought against the newspapers at the time, you can bet that the same papers would be a little more leery of publishing the stuff from Wikileaks. The newspapers were protected, though, by the First Amendment’s speech and press provisions.

Ellsberg did get prosecuted for violation of the Espionage Act. Ultimately, though, his prosecution was thrown out because of the misconduct of the Nixon administration’s colorful characters that we all remember — at least those of us who are old enough.

So here’s the question: are Wikileaks and Julian Assange more like Daniel Ellsberg or the New York Times?

I think that one is really pretty easy: they are more like the NYT. Wikileaks and Julian Assange are not the leakers; they published the leaks. The fact that Wikileaks is not a newspaper or other “news source” is entirely irrelevant.

The people who did the leaking undoubtedly can be prosecuted. But that not what people like Eric Holder, Hillary Clinton, and Robert Gibbs are intimating when they talk about a criminal investigation. There is obviously already a campaign underway to rough up Assange underway.

Daniel Ellsberg, incidentally, recently weighed in on the Wikileaks disclosures.

Update: This from Politio via Slate:

Hawk a fake Coach handbag online, and the U.S. Department of Justice will come down on you like a hammer. Leak secret State Department documents, and the hammer falls silent. That is the power of the First Amendment, which commentators say will protect WikiLeaks founder Julian Assange from U.S. retribution for his organization's activities. "They're not going to be able to threaten or touch Julian Assange," Gabriel Schoenfeld of the Hudson Institute told Politico. European countries will be reluctant to extradite him, he said, and there's always "the inherent First Amendment problems in the Espionage Act."

The Politico story was posted this morning, December 2nd.

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