The Ellsberg Model

'What if Daniel Ellsberg Hadn't Bothered?'(University of Minnesota Law School Legal Studies Research Paper Series Research Paper No. 11-23) by Heidi Kitrosser uses “constitutional counterfactuals” in asking what difference, if any, did the leak and subsequent publication of the Pentagon Papers make?

Despite this author’s vast enjoyment of several classic movies and television episodes featuring parallel worlds, this essay does not build a counterfactual universe in which Daniel Ellsberg never leaked the Pentagon Papers. It hints at such a world indirectly, however, by considering the difference that Ellsberg’s leak made in the universe that we do occupy.

This essay considers the impact of the Pentagon Papers leak on public and judicial attitudes toward secrecy-based assertions by the executive branch. I use the term secrecy-based assertions to cover two types of claims: claims that information must be kept secret to protect national security, and claims that the public would understand and bless the government’s actions if only the public could see the information that they are not permitted to see. This essay argues that the Pentagon Papers leak and its aftermath helped set in motion a process of social learning – albeit a non-linear one with plenty of limits and setbacks - that continues to this day on the dangers of excessive deference to secrecy-based assertions by the government.

With respect to assertions that the public would bless the government’s actions if only it knew what they know, the Pentagon Papers were widely viewed as giving lie to such claims as they related to the Vietnam War. The Papers’ revelations impacted Americans’ willingness to take on faith the honesty and competence of their government. Nor was this impact lost on the Nixon Administration, whose paranoia skyrocketed in the wake of the leak, contributing to a chain of nefarious activities that led to Nixon’s resignation and further catalyzed public distrust in government. This state of affairs led among other things to an influx of newly elected congresspersons championing restraints on the executive branch. Yet these events also gave rise to an influential and continuing backlash against restraints on presidential power, one that became most evident during the administration of George W. Bush and continues in the Obama Administration. As the backlash and the ongoing influence of its attendant constitutional claims illustrate, the impact of the Pentagon Papers leak on public, political, and judicial deference to executive power is hardly straightforward. Nonetheless, a key impact of the leak – indeed, the reason that it gave rise to so strong and continuing a backlash– is that it serves as a permanent, high-profile reminder that lies, mistakes, and incompetence may well lurk behind a government admonishment to “‘trust the President because only he [He?] knows the facts.’”

Closely related to wariness toward government claims of expertise based on secret knowledge is another type of skepticism fostered by the Papers’ leak: that toward government claims that information must be kept secret in the name of national security in the first place.

The impact of the latter, like that of the former, is hardly unmitigated. For example, the case law is littered with instances before, after, and even during the period of the leaks and ensuing scandals in which courts defer heavily to national-security based pleas to keep information secret. Furthermore, even as the Supreme Court refused to grant a prior injunction to prevent the Papers’ publication, a number of Justices suggested, in concurring and dissenting opinions, that post-publication punishment might be constitutional if authorized by statute.

Nonetheless, the leak of the Papers constitutes a moment of social learning embedded in our national psyche, counseling us to suspect overreaching when the government invokes national security to justify secret-keeping. Indeed, there is good reason, on which I elaborate below, to believe that the federal government would be less restrained than it currently is in punishing leaks of classified information were it not for the Pentagon Papers experience.