Snowden's Release Of NSA Documents Looking More Like Ellsberg's Release Of Pentagon Papers

Various news reports yesterday claimed that the Justice Department is preparing to criminally charge former NSA contract worker Edward Snowden for leaking information to the media about the National Security Agency's vast surveillance network of American citizens. Presumably, Snowden will be charged under the Espionage Act, the same law Pentagon Papers leaker Daniel Ellsberg was charged with violating during the Nixon administration. Like Snowden, Ellsberg worked as a government contractor, the RAND Corporation, when he copied and leaked a collection of papers prepared by a task force in 1967 authorized by former Defense Secretary Robert McNamara that demonstrably proved that President Lyndon Johnson and prior administrations had lied to the American people and Congress about America's military involvement in Vietnam.

I've heard a number of officials who have denounced Snowden's actions and called on the Justice Department to charge him say that he should have taken a different tact, such as contacting members of Congress or others within the government, rather than releasing classified information to the media. That's precisely what Ellsberg attempted to do before he leaked the Pentagon Papers to the media. Unlike Snowden, Ellsberg had friends in high places. He approached then-White House National Security Advisor Henry Kissinger, Senators William Fullbright and George McGovern and others but none were interested.

Sen. Ron Wyden believes Director of National Intelligence James Clapper lied to Congress when answering questions about the agency's surveillance activities as recently as this past March. Wyden asked Clapper during his testimony in March if the NSA collects “any type of data at all on millions of Americans.” “No, sir,” Clapper had responded. “There are cases where they could inadvertently perhaps collect [intelligence on Americans], but not wittingly.” To head off criticism, Clapper had some information previously deemed classified by the government declassified and released to the media to dispel "myths" about government surveillance of Americans' Internet activities. The evidence is overwhelming that the NSA and other government officials, including members of Congress, have deliberately misled the American people about the extent to which they are being spied upon by the government.

Meanwhile, the ACLU yesterday filed suit against the government to strike down the NSA's broad authority regarding telephone surveillance. The suit claims the surveillance violates Americans' right to free speech and privacy guaranteed to them by the U.S. Constitution. Because of Snowden's leaks, the ACLU's lawsuit may succeed where others have failed. For instance, the Supreme Court ruled 5-4 in favor of the government in a similar case because the plaintiffs could not prove that their phone calls had been tapped. Former Justice Department prosecutor Larry Klayman had already filed a lawsuit against Verizon and now plans to file a class action lawsuit against the government and nine companies who participated in the sharing of information with the NSA's Prism intelligence gathering system according to the information Snowden leaked.

One of the arguments made in Ellserberg's case was that the government was overly broad in what it deemed "classified" information. Nixon's own solicitor general described the classification of the Pentagon Papers as "massive overclassification" with "no trace of a threat to the national security." It seems to me that a similar argument can be made in Snowden's case. Indiana's Sen. Birch Bayh defended the leaking of the Pentagon Papers at the time, a defense one could easily substitute in Snowden's case.

The existence of these documents, and the fact that they said one thing and the people were led to believe something else, is a reason we have a credibility gap today, the reason people don't believe the government. This is the same thing that's been going on over the last two-and-a-half years of this administration. There is a difference between what the President says and what the government actually does, and I have confidence that they are going to make the right decision, if they have all the facts

The case against Ellsberg was eventually dismissed by the federal judge after a number of irregularities were uncovered, including the fact that the government had illegally wiretapped Ellsberg's phone and even broke into his psychiatrist's office in order to obtain his confidential medical records in an effort to discredit him. Despite Ellsberg's release of the Pentagon Papers in 1971 and widespread reporting on their contents over the years, the government did not officially declassify the documents until 2011.