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Ellsberg, Nixon's bane, comments on current disregard for the constitution [ClearOnMoney]
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Ellsberg, Nixon's bane, comments on current disregard for the constitution

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Commentary

Ellsberg, Nixon's bane, comments on current disregard for the constitution

8 Jun 2011 by Jim Fickett.

It seems that for many Americans the constitution and the law, as they apply to the government, are increasingly viewed as irrelevant niceties. Daniel Ellsberg, leaker of the Pentagon Papers in 1971, points to several important examples. One worth highlighting is that Congress has abdicated, and presidents have usurped, the power to begin wars. An even more important one is that, in the “war on terror”, powers intended for use against enemies are being used against citizens, in particular to prevent whistle blowers from revealing government abuses.

CNN had an interview with Daniel Ellsberg yesterday, in which there were some very revealing comments about the rule of law, or lack thereof, in the US today.

By way of background, for the young, here is the very brief overview of Ellsberg's whistle blowing in the 1971, which helped both to end the Vietnam war and to oust Nixon:

In the 1960s, Ellsberg was a high-level Pentagon official, a former Marine commander who believed the American government was always on the right side. But while working for the administration of Lyndon Johnson, Ellsberg had access to a top-secret document that revealed senior American leaders, including several presidents, knew that the Vietnam War was an unwinnable, tragic quagmire.

Officially titled “United States-Viet Nam Relations, 1945-1967: A Study Prepared by the Department of Defense,”–the Pentagon Papers, as they became known–also showed that the government had lied to Congress and the public about the progress of the war. In 1969, he photocopied the 7,000-page study and gave it to the Senate Foreign Relations Committee. In, 1971, Ellsberg leaked all 7,000 pages to The Washington Post, and 18 other newspapers, including The New York Times, which published them.

Not long after, he surrendered to authorities and confessed to being the leaker. Ellsberg was charged as a spy. His trial, on twelve felony counts posing a possible sentence of 115 years, was dismissed on grounds of governmental misconduct against him. In April 1973, the court learned that Nixon had ordered his so-called “Plumbers Unit” to break into the office of Ellsberg's psychiatrist to steal documents they hoped might make the whistle-blower appear crazy. In May, more evidence of government illegal wiretapping was revealed. The charges against Ellsberg were dropped. This led to the convictions of several White House aides and figured in the impeachment proceedings against President Nixon.

There were two things in Ellsberg's comments yesterday that are worth emphasizing. One is about declaration of war. The constitution stipulates that only Congress can declare war. Yet Congress has abdicated and presidents have, more and more over time, taken the prerogative of starting wars themselves (there is a solid historical overview in a recent article entitled What happened to the American declaration of war?). Ellsberg says,

Leaders in the Executive branch –in every country– … want to stay in office and keep on running things with as little interference from Congress, the public and the courts as possible: which means, with as much secrecy as they can manage. …

Our Founders sought to prevent this. Article I, section 8 of the Constitution, for the first time in constitutional history, put the decision to go to war (beyond repelling sudden attacks) exclusively in the hands of Congress, not the president. But every president since Harry Truman in Korea–as the Pentagon Papers demonstrated up through LBJ, but beyond them to George W. Bush and Barack Obama–has violated the spirit and even the letter of that section of the Constitution (along with some others) they each swore to preserve, protect and defend.

… no president has so blatantly violated the constitutional division of war powers as President Obama in his ongoing attack on Libya, without a nod even to the statutory War Powers Act, that post-Pentagon Papers effort by Congress to recapture something of the role assigned exclusively to it by the Constitution. …

As Abraham Lincoln explained their intention (in defending to his former law partner William Herndon his opposition to President Polk's deliberately provoked Mexican War): “The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”

In this regard, it is worth noting that undeclared wars, along with the Bush tax cuts, have been major drivers of high US debt.

The most important thing Ellsberg has to say is that our current government is in an all-out attack on whistle blowers. The CNN article is entitled, “Daniel Ellsberg: All the crimes Richard Nixon committed against me are now legal”. Perhaps legal according to the Patriot Act, but almost certainly unconstitutional. In response to the question, “These days, when you find yourself thinking about Richard Nixon, what comes to mind?”, Ellsberg had this to say.

Richard Nixon, if he were alive today, might take bittersweet satisfaction to know that he was not the last smart president to prolong unjustifiably a senseless, unwinnable war, at great cost in human life. (And his aide Henry Kissinger was not the last American official to win an undeserved Nobel Peace Prize.)

He would probably also feel vindicated (and envious) that ALL the crimes he committed against me–which forced his resignation facing impeachment–are now legal.

That includes burglarizing my former psychoanalyst's office (for material to blackmail me into silence), warrantless wiretapping, using the CIA against an American citizen in the US, and authorizing a White House hit squad to “incapacitate me totally” (on the steps of the Capitol on May 3, 1971). All the above were to prevent me from exposing guilty secrets of his own administration that went beyond the Pentagon Papers. But under George W. Bush and Barack Obama,with the PATRIOT Act, the FISA Amendment Act, and (for the hit squad) President Obama's executive orders. they have all become legal.

There is no further need for present or future presidents to commit obstructions of justice (like Nixon's bribes to potential witnesses) to conceal such acts. Under the new laws, Nixon would have stayed in office, and the Vietnam War would have continued at least several more years.

Likewise, where Nixon was the first president in history to use the 54-year-old Espionage Act to indict an American (me) for unauthorized disclosures to the American people (it had previously been used, as intended, exclusively against spies), he would be impressed to see that President Obama has now brought five such indictments against leaks, almost twice as many as all previous presidents put together (three).

He could only admire Obama's boldness in using the same Espionage Act provisions used against me–almost surely unconstitutional used against disclosures to the American press and public in my day, less surely under the current Supreme Court–to indict Thomas Drake, a classic whistleblower who exposed illegality and waste in the NSA.

Drake's trial begins on June 13, the 40th anniversary of the publication of the Pentagon Papers. If Nixon were alive, he might well choose to attend.

For a balanced overview on Thomas Drake's case, see the New Yorker's article, The secret sharer.

Typically, the populace goes along with leaders who twist or ignore the law because things seem to be going reasonably well. This, like the conditions leading to financial crises, works until it doesn't. I fear that very few Americans understand the danger of setting aside the constitution and the law in favor of trusting individuals. It works until the wrong individual comes along.