By Brad Friedman on 7/8/2013, 12:43pm PT  

"Pentagon Papers" whistleblower Daniel Ellsberg wrote an op-ed in Sunday's Washington Post explaining why he believes that NSA whistleblower Edward Snowden made the right decision in fleeing the country, rather than staying here and facing charges for leaking classified NSA documents about massive government surveillance programs that he believes to be illegal and/or unconstitutional.

"The country I stayed in was a different America, a long time ago," writes Ellsberg, alluding to his own decision to stay in the country to face charges of espionage (which were eventually tossed out) in 1971 after he leaked thousands of pages of classified Defense Department documents to the New York Times and other media outlets about the purposely deceptive origins of the Vietnam War and lies told by American Presidents to support those deceptions.

"When I surrendered to arrest in Boston," he writes, "having given out my last copies of the papers the night before, I was released on personal recognizance bond the same day."

"For the whole two years I was under indictment, I was free to speak to the media and at rallies and public lectures. I was, after all, part of a movement against an ongoing war. Helping to end that war was my preeminent concern. I couldn't have done that abroad, and leaving the country never entered my mind," he explains.

In the op-ed, the iconic 70's whistleblower goes on to echo several of the points he had previously made during my interview with him in mid-June, just days after Snowden outed himself as the leaker from an undisclosed location in Hong Kong: "There is no chance that experience could be reproduced today, let alone that a trial could be terminated by the revelation of White House actions against a defendant that were clearly criminal in Richard Nixon's era --- and figured in his resignation in the face of impeachment --- but are today all regarded as legal (including an attempt to 'incapacitate me totally')."

"I hope Snowden's revelations will spark a movement to rescue our democracy, but he could not be part of that movement had he stayed here," write Ellsberg, adding that there is "close to no chance that, had he not left the country, he would have been granted bail. Instead, he would be in a prison cell like Bradley Manning, incommunicado."

After Snowden outed himself, Josh Marshall of Talking Points Memo had expressed a thoughtful skepticism of Snowden and his motivations in this affair, though Ellsberg dismissed Marshall's musings as "stupid and mistaken" when I asked him about the comments directly during my interview.

Today, Marshall says, he's "kinda curious" about what Ellsberg meant in his op-ed remark that "The country I stayed in was a different America, a long time ago"...

"Both as a rhetorical question and a real question I'm curious just what Ellsberg means by that," writes Marshall. "His basic argument is that he was able to stay out on bail and that wouldn't have been an option for Snowden. On the other hand, the White House at the time was running a special operations team against Ellsberg out of the White House, including breaking into his psychiatrist's office and at least some discussions of having him killed. So I'm not sure we can call those the glory days."

Not "glory days", certainly, but the sense I get from Ellsberg, in his op-ed, as well as from our radio discussion and other recent off-record conversations, is that he felt a certain sense of security at the time (rightly or wrongly) in the full faith and credit of both the Constitution and the American legal system. Those rock-bottom assurances of fairness in such cases, he now seems to be suggesting, are all but gone for whistleblowers like Snowden, as both the Constitution and the legal system have been almost unrecognizably twisted in order to serve any purpose of an Executive Branch, rather than to constrain it.

Moreover, while the rule of law has been bent beyond recognition to favor the prosecution, it is also being used (along with a remarkably helping hand by mainstream corporate media) to help keep the unconvicted accused from even being able to offer their side of the story in a fair and open process, should they choose, in the public realm.

Ellsberg spoke directly to those points in a bit more detail during our interview:

ELLSBERG: I think the current climate is such that if [Snowden] were in the country, we would have no more chance to hear from him than you or I or anybody has had from Bradley Manning. He'd be in jail, he might be in the same cell in Quantico --- at best --- as Bradley Manning was for ten and a half months, in isolation. Or he might be in Guantanamo.

He would not be out on bond as I was 40 years ago. I was able to speak very freely in this country out on bond during my trial. And to speak not so much about my case as to the war, and to put my message out about the nature of the war and why it should be ended.

So he, Snowden now, from where he is, and he's given more than one interview, has really been able to say how dangerous he believes this practice of total data gathering that's going on on the American people, how dangerous that is. He's able to say it in a way he couldn't do in this country.
FRIEDMAN: So to you, this is now the only way really that whistleblowers can even get their side of the story out. They'll be tarred and feathered or thrown in the brig as Bradley Manning was. Correct?
ELLSBERG: There's no question in my mind that [Snowden] is a whistleblower in the best, complete sense. And he left the country and he did it for good reason.

In my case, as I said, there was a different country 40 years ago, where I was able to speak for so long. The things that were done against me, which included trying to "incapacitate me totally" at the orders of the White House, in other words, assault me or kill me, those were illegal then. And in fact they faced President Nixon with impeachment proceedings and led to his resignation. That's very different. All the things that were done to me then including CIA profile on me, a burglary of my former psychiatrist's office in order to get information to blackmail me with, all of those things were illegal, as one might think that they ought to be.

They're legal now, since 9/11, with the PATRIOT Act, which on that very basis alone should be repealed. In other words, this is a case right now with Snowden that shows very dramatically the dangers of that PATRIOT Act used as it is. So the fact is that all these things are legal, and even the one of possibly eliminating him.

In fact, the treatment that accused WikiLeaks leaker Bradley Manning received --- although his circumstances were somewhat different as a member of the military --- underscores Ellsberg's narrative here, that the law and Constitutional protections don't mean much to a whistleblower who has had the wrath of God a President of the United States turned against him.

As Ellsberg reminds in WaPo, "The United Nations Special Rapporteur for Torture described Manning's conditions as 'cruel, inhuman and degrading.'" That finding was later confirmed by the U.S. Army Colonel serving as Judge in Manning's military trial, when she found his confinement --- which including months of being held in isolation in a windowless cell, often unclothed, for 23 hours a day --- to be "excessive in relation to legitimate government interests."

Though such a finding could, legally, have made Manning eligible for the dismissal of all charges, instead the judge reduced his potential sentence by 112 days. That would be 112 days off from what is a potential life sentence. As absurd as that all sounds --- and is! --- it might have been even more absurd still had prosecutors decided, as they could have, to have sought the death penalty in his case.

Even under the differing rules for a military court martial, the circumstances, the national mood, and, most disturbingly, the now-de rigueur willingness of the government to bend the law to meet their goals, does not seem to bode well for any national security whistleblower, much less someone revealing secrets with the impact of those leaked by Snowden.

Who, in their right mind, could take comfort, anymore, in the protections supposedly afforded by the U.S. Constitution at this point, especially in a case like Snowden's? Remember also, we currently have 86 prisoners in Guantanamo Bay who have long ago been cleared by the government for release. Nonetheless, they have been held for years without charges, never will be charged, and yet they still sit as prisoners with little hope for release despite the fact that President Obama could, within his legal rights, send all of them home tomorrow.

That's the world that Snowden, understandably, may wish to avoid. Why Josh Marshall wouldn't appreciate that --- whether he agrees with the decision or not --- is somewhat puzzling.

"Snowden believes that he has done nothing wrong," writes Ellsberg. "I agree wholeheartedly. More than 40 years after my unauthorized disclosure of the Pentagon Papers, such leaks remain the lifeblood of a free press and our republic. One lesson of the Pentagon Papers and Snowden's leaks is simple: secrecy corrupts, just as power corrupts."

Still, this story is not now, nor has it ever been, about Snowden, a point I tried to get back to during my KPFK/Pacifica Radio show last week when I spoke to a legal expert from the Electronic Frontier Foundation in hopes of refocusing on the substance of the actual disclosures made by Snowden to date. That's what the story is, or at least, should be about --- even if Snowden's own circumstances in this framework do tend to underscore the secrecy, surveillance, and fully-militarized domestic "War on Terror" state seemingly run amock, with little hope for accountability, a full decade after 9/11.

"Snowden's contribution to the noble cause of restoring the First, Fourth and Fifth amendments to the Constitution is in his documents," writes Ellsberg, trying to return to the substance as well. "It depends in no way on his reputation or estimates of his character or motives --- still less, on his presence in a courtroom arguing the current charges, or his living the rest of his life in prison. Nothing worthwhile would be served, in my opinion, by Snowden voluntarily surrendering to U.S. authorities given the current state of the law."

"What he has given us is our best chance --- if we respond to his information and his challenge --- to rescue ourselves from out-of-control surveillance that shifts all practical power to the executive branch and its intelligence agencies: a United Stasi of America."

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More on my June 12, 2013 interview with Daniel Ellsberg is posted here. The complete audio and text transcript is posted here.

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