Ellsberg: Losing 1st Amendment Reverses War of Independence

Daniel Ellsberg says using the Espionage Act against journalist Julian Assange in blatant violation of the First Amendment means the First Amendment is essentially gone. 

Ellsberg gave the following address to the Belmarsh Tribunal on Friday night. A transcript follows. 

Hi, I’m Dan Ellsberg. One of the foundation stones of our government here in the United States, for democracy and a republic, is our First Amendment to the Constitution, which forbids any law by Congress or the states abridging freedom of speech or of the press, along with freedom of religion or of assembly, that precluded the passage of a British type Official Secrets Act, which most countries have. 

Almost no other country has a law singling out the press as protected by our freedom, by the First Amendment and the British type Official Secrets Act, which criminalizes any or all disclosure of information protected by the government executive branch. Even disclosure to the public or to the press or to Congress or Parliament is criminalized and subject to prison.

We’ve never had such an act because of our First Amendment. In fact, one was almost inadvertently passed by Congress in the year 2000, but it was vetoed by President Clinton as a clear cut violation of the First Amendment.

And he cited in his opinion accompanying that, some of the opinions in the Pentagon Papers case of half a century ago that had resulted from my disclosure of information that I had authorized possession of, as a contractor to the government at that time : 7000 pages of top secret documents about the history of U.S. decision making in Vietnam, which disclosed repeated sequence, by four different presidents, of lies and in effect, violations of the Constitution,  treaties and in particular misleading Congress as to the costs for war. I was facing 115 years in prison, but not for Official Secrets Act, which we don’t have.

It was an experiment by President Nixon to use our Espionage Act, which had always been directed and intended for U.S. spies, giving information secretly to a foreign government, especially in time of war. It had never been used as it was by Nixon, in my case, as a substitute for an Official Secrets Act, for disclosure to the public, with no indication of my intentions there, but simply to hold that doing that was a violation. 

That was dismissed on grounds of government criminality against me and there never has been a Supreme Court decision on whether using the Espionage Act, as is now facing Julian Assange as a basis for an attempt to extradite him from Britain to the U.S., was constitutional.

They’ve never received it, even though there have been dozens of cases since then. Since my case in which the act was used as if it were an Official Secrets Act, in effect making it a reliable substitute for withholding from the public any information the government doesn’t want it to have, which is an enormous amount of information.

Up until the Julian Assange indictment, the act, however, had never been used as an Official Secrets Act against other than sources like myself, who had possession of information, who disclosed it to the public.

It had never being used against a journalist, like Julian Assange, although in each case of course, of such disclosures or leaks, some form or media was involved, and many, many people involved. But they had never been indicted for that before. 

Actually, if you’re going to use the act against a journalist in blatant violation of the First Amendment’s denial of Congress’s ability to criminalize acts by journalists, by the press, the First Amendment is essentially gone. 

They say we were the first to have it. We fought a war of independence and established a constitution. So we have a First Amendment. Britain does not, where Julian now is, and they have an Official Secrets Act, which we don’t.

If we acquire that, we give up the main result, I would say, of that War of Independence, in the sense that we are no longer really a Republic, or a Democracy. We have monarchical powers, imperial powers, formally, and every empire requires secrecy to cloak its acts of violence that maintain it as an empire. It’s a major change from our former government. 

The fact is that the Espionage Act is even broader than the British Official Secrets Act, and that’s why Congress, people in Congress who wanted to uphold secrecy have given up trying to pass a formal Official Secrets Act.

They prefer the Espionage Act because the wording of that act – so far not used against a journalist until Julian Assange, and not used beyond a journalist to someone who simply receives the information or possesses and maintains it without giving it to an authorized authority – that is covered by the language of the Espionage Act.

To challenge that, a year ago I released a top secret document on the Taiwan Straits Crisis of 1958 – that long ago – in which the U.S. came close to using nuclear weapons to uphold the protection of Taiwan from mainland China, an issue which is now very much facing us this year.

And I challenged that as someone who had held out and refused to give it to an authorized authority for all these years, in order to raise in court for the first time whether we can take the plain language of the Espionage Act as controlling and overruling basically the First Amendment.

To go further this year in connection with the attempt to extradite Julian Assange, I also revealed the fact that I had been as subject to indictment as Julian all this time since 2010, because I had possessed the information which he released to the newspapers before he did that. He conveyed it to me before he did that as a backup to what he was doing for the press. 

In the plain language of the act then, as someone who possessed that information and did not disclose it to an authorized person, who retained it, I, like actually every reader of the Times — The New York Times, The Guardian, El Pais, Le Monde, who received and published that information, every reader all over the world comes under the plain language of that act.

I’m in effect – same with Julian – I am prepared to face a test of that act going up to the Supreme Court if necessary, and restoring our status as a republic. 

I call on President Biden either to indict me, along with Julian Assange and others, or to drop this unconstitutional attempt to extradite Julian – I wouldn’t have to be extradited – or to prosecute either of us in these courts. That is really the only way for him to restore our status as a Republic and a democracy.

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19 comments for “Ellsberg: Losing 1st Amendment Reverses War of Independence

  1. January 24, 2023 at 14:27

    Assange and Wikileaks released a US Army Video showing a Helicopter Gunner Spraying Civilians with a
    30mm Cannon ; while Whooping for Joy , killing Defenceless Civilians, Including a Reuters Correspondent This is the Secret Information that Assange” Passed to the Enemy”. The Great American Empire`s Army at Play. Killing for Sport.

  2. Vera Gottlieb
    January 24, 2023 at 11:34

    Just curious…all those presently so engaged in destroying the US…do they actually know what it says in the Constitution? All that excessive patriotism, jingoism makes me doubt their sincerity.

  3. robert e williamson jr
    January 23, 2023 at 15:08

    Reading the comments that are sent to CN gives me the impression that writer after writer understands topics, their cause and effect with respect to this governments inability to get much of anything right when it comes to the personal freedoms Americans seem to cherish so much. One should note that D.C. seems to get very little right these days except sustaining the corrupt statue quo of government’s marketing itself to the highest bidder.

    I witness very little of this type of thought coming from D.C., you know evidence that all or any of the branches of our government are concerned about government overreach seeping into every corner of government.

    Something Daniel Ellsberg, true American Patriot and hero skillfully illustrates here.

    American has a huge credibility problem and it deserves the reputation that goes along with tyrannical rule.

    These jokers might want to examine their current reality. A reality that becomes more fragile each day they ignore the remainder of us pilgrims.

    Patriotism is supporting your country all the time and the government when it deserves it. If we wish to continue to have a great nation or the capacity to have a great nations we much wrest it from the evil doers of the Deep State. Those who have allegiance to no nations flag but only to the numbered bank accounts.

    My hats off to Dan Ellsberg, thank you sir so much for caring.

    Again thanks to CN & crew.

  4. Barbara
    January 23, 2023 at 13:34

    Julian Assange is not a US citizen. How can he be tried for treason against a country he is not a citizen? The government is having a temper tantrum because he exposed information most of us suspected. Much like Edward Snowden.

  5. Anon
    January 23, 2023 at 12:19

    IMO… “Battle in Seattle” embarrassed Bilderberg / Trilateral group & thwarted its NWO globalist ambitions…
    Response: lobby US Local Jurisdictions to enact “Permit to Assemble” law.
    Blatant violation of First Amendment freedoms… & reduces Sacred Founding Father Principles to …… wait4it …………Traffic Regulation!

  6. Skip Edwards
    January 23, 2023 at 11:09

    To paraphrase from US history: you have a republic if you can keep it!

    Thanks for keeping Julian Assange in the news.

  7. robert e williamson jr
    January 23, 2023 at 10:16

    I see more and more written about the boiling frog syndrome. Could easily be that the same group of authoritarians who gave us the Patriot Act have their hands on the temp controls for the water we sit in.

    This was another case of government over reach that found it’s home because government failed to do it’s job to protect and serve it’s citizens. Government dirty dealing causes a reaction and we get punished for it, not the Saudis.

    Thanks CN

  8. Walter
    January 23, 2023 at 08:05

    “Secret” or “Classified”…often the thing being kept secret is evidence of a crime. When one becomes cognizant of felony, then keeping the crime a secret is itself a crime…

    This is to say that it cannot be a crime to report a crime…

    And it is a crime to keep the crime secret.

    As to “losing” the First Amendment. That’s nonsense…see Marbury v Madison.

    Of course the criminals have the power to commit crimes…such as using “Espionage Act” on people who expose crime. But that does not eliminate the Constitution, it only becomes further proof that the ruling class is indistinguishable from the criminal class.

    • Frank Lambert
      January 23, 2023 at 10:44

      Amen, Walter, you said it well. I totally agree!

      Peter Stevenson, that was American history at one of it’s darkest periods. The IWW, labor unions in general, socialists and anarchists were the true freedom fighters, fighting for an egalitarian society for the fruits of their labor. In my opinion, the great Eugene Debs was more “Christlike” then the phony clergy of the various Protestant and Catholic denominations.

      Valerie, Common Dreams deleted the archives of comments many years ago, as I was one of the original commenters back in the early 2000’s. I haven’t looked at that website for years.

  9. John Smith
    January 23, 2023 at 07:25

    Dan, you’re calling for action from a criminal, senile hand-puppet of the establishment unfortunately. You know this.

  10. Peter Stevenson
    January 23, 2023 at 06:11

    The Espionage act was used by Woodrow Wilson and Palmer, his Attorney General, to persecute the IWW, unions, socialists and anarchists. The socialist parties of the time and IWW never recovered. Eugene Debs was imprisoned, health ruined. Emma Goldman deported, never again to reside in the country she called home from the age of sixteen. Far worse than anything Nixon ever did.

  11. Valerie
    January 23, 2023 at 03:36

    The hypocricy is breath-taking:

    “Protecting Press Freedoms Worldwide”

    MAY 17, 2010 AT 3:36 PM ET BY JESSE LEE


    President Obama signs the Daniel Pearl Freedom of Press Act into law.

    Today, President Obama signed the Daniel Pearl Freedom of the Press Act into law, a bill that reinforces the nation’s commitment to ensure freedom of the press, including bloggers, around the world.  The President described the act as upholding our “core values” and sending a strong signal to the world about journalistic rights.

    The President was joined by members of the murdered journalist Daniel Pearl’s family, including his son Adam and his widow, Mariane.  He thanked the Pearl family for their courage in ensuring that Pearl’s legacy of holding governments accountable lives on. The bill directs the State Department to record how press freedom operates in conjunction with our human rights assessment, and hold countries that facilitate press repression to world opinion.  He explained that the bill sends a strong message from the U.S. government and State Department to other countries that America is paying attention to how press is operating around the world.

    And this from Adam Schiff in April 2009:

    “Freedom of expression cannot exist where journalists and the media are not independent and safe from persecution and attack,” said Schiff.  “Our government must promote freedom of the press by putting on center stage those countries in which journalists are killed, imprisoned, kidnapped, threatened, or censored.”

    “I can think of no better way to honor the memory of Daniel Pearl,” Pence said. “This legislation takes valuable steps in highlighting and supporting the critical work of investigative journalism, while putting on notice those countries who choose to ignore the freedom of the press and perpetrate violence and censorship that should offend the conscience of all those who cherish freedom.”

    (I wonder if this law can be applied to Julian Assange)

  12. HelenB
    January 22, 2023 at 20:05

    Someone posted on another site recently that PayPal has the ability to charge your account if you post information in public that they consider inappropriate. Whatever.

    • Consortiumnews.com
      January 22, 2023 at 23:49

      They can permanently suspend an account for that reason, as they did to Consortium News.

      • rosemerry
        January 23, 2023 at 12:53

        Has anyone else tried to get away from paypal and succeeded? Often I try to use debit card but paypal insists on large amounts of personal details and will not allow the card to do the job. Is there any cure?

      • January 23, 2023 at 20:05

        As soon as PayPal suspended the ConsortiumNews account, I terminated my own with them and let them know why. I know others did it as well, but apparently to little effect.

    • Valerie
      January 23, 2023 at 03:40

      Maybe why “Commondreams” discontinued their comment section. ?

      • January 23, 2023 at 20:03

        Valerie, re. CommonDreams… as a regular reader, donor and commenter, I was really disappointed by CD’s reformatting that ended possibility of commenting, and let them know. I really doubt that it added much cost to have the comments, so I can only assume that it might have been prompted by the fact that most of the commenters routinely criticize the Democratic Party when the context justifies, but CD itself seems to have become over time more interested in merely appealing to partisan Democrats. I understand the financial pressures that lead some / many publishers to compromise journalism in order to not offend hoped-for readership, but in any case, I’ve decided to re-direct any contributions to those remaining journalists and journals (like ConsortiumNews!) that retain their integrity.

        • Valerie
          January 24, 2023 at 04:27

          Yes Roger, it was rather remiss of CD to not even inform its readers that comments would be suspended. Not sure I agree with your reason though. However, I believe they will lose a substantial amount of donations by this decision. You as one of them, in point of fact.

Comments are closed.