As ACLU attorneys confront a President’s ungrounded assertion that he may eavesdrop on the private communications of American citizens without a warrant and in the face of an express statutory prohibition – and as these events unfold in the shadow of one illegal and immoral war and quite possibly on the brink of another – I am haunted by echoes both personal and historical.
During the course of my prosecution for leaking the “Pentagon Papers” to the New York Times and other newspapers, I learned that I had been the victim of warrantless electronic surveillance by the federal government. In fact, so egregious was the government’s misconduct in unlawfully prying into my private life that the entire prosecution collapsed under its weight. (It was this surveillance of me and other prominent war critics, journalists, and government officials that led to Congress’s subsequent enactment of the Foreign Intelligence Surveillance Act – the very statute that this President has so shamelessly violated.) I and some of my attorneys – who had also been unlawfully overheard by the federal government – then brought suit against Attorney General John Mitchell and others, challenging their involvement in the rampant and illegal invasions of our privacy.
Rather than defend the indefensible, the Executive Branch moved to dismiss our suit on the basis of the “state secrets privilege” – the very same defense that Alberto Gonzales’s deputies have invoked to fend off the ACLU’s challenges to illegal NSA eavesdropping and CIA kidnapping, and to silence FBI whistleblower Sibel Edmonds. The notion that the executive branch may brazenly violate the law, and then prevent any accountability for its wrongdoing by insisting that even federal judges are not capable of adjudicating critical constitutional disputes without jeopardizing national security, was offensive and ludicrous then, and is simply inexcusable now, when we have such an ample historical record of the government’s capacity for and tendency towards deceit. But as long as federal judges – who are themselves constitutional officers – continue to defer to the government’s extravagant and dishonest security claims, the government will continue to employ this undemocratic tool to avoid accountability and embarrassment.
The dispute over publication of the Pentagon Papers should serve as a cautionary tale – and a useful guide. When I provided the classified papers to the New York Times and the Washington Post, the Nixon White House took the unprecedented step of seeking to prevent their publication. The Times and Post, to their historic credit, fought back, and the cases made their way to the Supreme Court. In the meantime, seventeen other newspapers defied the Administration’s warnings by publishing the papers, a wave of institutional civil disobedience without parallel in any country.
In the Supreme Court, the Nixon Administration offered the same argument that we hear today: that once the Executive Branch has determined that national security is at issue, courts should step aside:
In the present cases high government officials have explained the reasons for their concern; that judgment is enough to support the Executive Branch’s conclusion, reflected in the top secret classification of the documents and in the in camera evidence, that disclosure would pose the threat of serious injury to the national security.
The Supreme Court was unpersuaded. The four newspapers that had been enjoined — the Times, the Post, the Boston Globe, and the St. Louis Post-Dispatch — resumed publication of the Pentagon Papers, along with many others. Some twenty years after the release of the papers, former Solicitor General Erwin Griswold, who had argued the case on behalf of the Administration, conceded: “I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such a threat.”
In yet another echo, the current dispute over the President’s claim that he is above the law originated with leaks to The New York Times – this time anonymous. It was The Times that revealed that the President had been operating a secret “program” of electronic eavesdropping outside the law. For this, The Times was accused of “treason” by the Administration’s proxies, and the Department of Justice announced a criminal probe not of the President’s blatant lawbreaking, but of the patriotic leaking that led to its exposure. We should applaud the civil servants within the national security bureaucracy who brought this constitutional crisis to light. But they have not done enough. The President’s lawbreaking could not have been accomplished without the obedient silence of hundreds of insiders who knew full well that our system of laws was being subverted by an unhinged Executive Branch. These people should have come forward sooner, and they should now urgently consider coming forward to testify publicly – and with documents.
It took me too long to recognize that the secrecy agreements I had signed frequently conflicted with my oath to uphold the Constitution. I’m not proud that it took me years of war to awaken me to the higher loyalties owed by every government official to the rule of law, to our fellow citizens, and, explicitly, to the Constitution. I hope others will learn that lesson sooner. With the ACLU’s legal support, I am now actively advocating whistleblowing in the national interest. It is a courageous, patriotic, and effective way to serve our country, and it may yet lead us out of our national crisis.