Malibu, California, 1970 — Former RAND Defense Department employee Daniel Elsberg, and his young children would spend days taking in the sun on the beach. Afterwards, under the silence of night, Elsberg would then work with his children and a friend inside the bungalow, copying mountains of secretive documents which history would come to call The Pentagon Papers.
In total, over the course of the summer of 1970, Elsberg copied close to 7000 pages of secretive documents he obtained illegally as a DoD employee. The documents contained a study conducted on the Vietnam War from roughly 1964-1968. The study concluded the war to be a failure and was locked inside RAND safes, highly classified material.
In late 1970-71, Daniel Elsberg went all over Washington to various Senators, Nixon staffers and NSA advisers — no one wanted anything to do with what he had unturned. So in February 1971, he met with NY Times editor Neil Sheehan. They agreed to a secret drop, and in March of 1971, Elsberg dropped 13 volumes of the study to Sheehan.
The NY Times began publication of the Papers on June 13, 1971. The Times legal staff warned against publication — but they did so anyways. Within days, the Nixon administration successfully sought an injunction against the Times to cease publication of the documents under an exemption of the First Amendment for reasons of National Security. They also moved against Elsberg and his co-conspirator Anthony Russo under the Espionage Act of 1917.
Ultimately, the Times appealed the injunction and the case went right up to the Supreme Court. In a 6-3 decision, the Court argued the government had not met a “sufficient burden of proof” to place an injunction against the paper. The government failed to prove that the publication of the papers were a threat to National Security.
Days before the SCOTUS decision, Elsberg turned himself over to federal prosecutors. His trial would commence in 1973, facing up to 115 years in prison if convicted. During the trial, it was revealed to the court that the FBI illegally wire-tapped Elsberg, and also illegally entered his home during the trial, failing to turn over such evidence obtained to the defense. Given the gross misconduct by the FBI and several federal prosecutors, Elsberg and Russo were dismissed of all charges against them on May 11, 1973.
FLASH FORWARD to 2010.
PFC. Bradley Manning serving in Iraq released to website Wikileaks close to 500,000 documents of the US involvement in Iraq and Afghanistan, including the 2007 Baghdad Airstrike and and airstrikes in Afghanistan which killed civilians in a reckless manner.
Despite the government failing once again on the burden of proof; that Manning’s release harmed national security or put anyone or any soldier at risk, he was charged with the ultra-serious crime of treason. The charge ‘aiding the enemy’ if convicted carries a life sentence.
While Manning awaited trial, in 2011, he was held in solitary confinement, prompting outrage from civil groups. In January 2013 he plead guilty to less serious charges carrying a sentence of 16 years. As of June 3, he is on trial appealing the treason charge against him.
Right now the Governments main argument against him is that his release of these documents incited the ‘Arab Spring’ protests. If that sounds like a straw-man argument, then you’re right on. The Arab Spring was not aimed at American foreign policy or the United States. The Arab Spring was a series of pro-democracy movements aimed at overthrowing existing power structures in various countries like Egypt and Tunisia.
However, a lot has changed since Elsberg’s trial. After the Patriot Act, the government no longer needed as strict a burden of proof to conduct what in 1973 according to Federal court transcripts amounted to “offend a sense of justice.” The same offense is now common federal activity given the more recent amendments to the Patriot Act, notably 50 USC section 1861. Under this section, for any reason deemed a concern to national security, and without the need of burden of proof or prior review by the courts, the Feds can issue a National Security Letter to subpoena a business for records of surveillance. The business is required to remain silent and cannot tell someone they are being placed under surveillance.
June 5, 2013 — Glenn Greenwald of the Guardian UK published a leaked Verizon National Security Letter ordering the release of records of its users to the Feds. The article documented just how serious the domestic surveillance issue in America is. Several senators including Bernie Sanders (D-VT) and Mark Udall (D-CO) have said this is just the tip of the ice berg. The senators cannot reveal much as they are bound by classified rules, but encouraged Americans to protest the Feds handling of vague National Security concerns.
What should scare everyone, is that in the most notable case of treason in US history, The Pentagon Papers, the accused were let off of all charges because the FBI acted in a gross miscarriage of justice, violating 4th Amendment rights. Today the Patriot Act circumvents not only the governments burden of proof in concerns of National Security but also extends to the circumvention of Constitutional Rights.
The vague and often motiveless pursuit of domestic surveillance by the federal government should concern every American. As technology advances, this surveillance can and will only get worse. We have come to a defining point in American history where every American regardless of political opinion needs to ask themselves what went so wrong with our values in the 40 years since 1973? The evolution of justice in America has taken a startling turn towards Orwellian outcomes. And now is the time to prevent our values from getting even worse long before the time we reach 2053.