WikiLeaks and Julian Assange

The precedent set by the Pentagon Papers

On June 17, 2022, the British government made the decision to allow the extradition of WikiLeaks founder, Julian Assange, to the US to face charges of violating the Espionage Act. What is this all about? In order to understand the complete context of the WikiLeaks issue one must look back more than 50 years ago to the history of stolen classified documents and their publication.

Robert McNamara commissioned a detailed history of US involvement in Vietnam from 1945 to 1967. McNamara was the secretary of defense for President Lyndon Johnson. It was Johnson who engineered the dramatic escalation of the number of US troops to Vietnam. The completed history project was titled, Report of the Office of the Secretary of Defense Vietnam Task Force. It later became known by the shorter, simpler name, the Pentagon Papers.

The Pentagon Papers addressed several critical issues that were kept secret from the US public and would prove to be embarrassing if they had become known. Most of these issues focused on the size, scope, and mission of US involvement in South Vietnam at a time when Americans were not aware of any American presence in Southeast Asia.

Under President Harry Truman in the late 1940s, the United States began providing covert aid to the French, who were fighting Communist forces. The French had colonized portions of Indochina in the late nineteenth century.

Clandestine efforts to undermine Communist leaders in North Vietnam continued under President Dwight Eisenhower in the 1950s. Then, in the 1960s, President John Kennedy approved a modest build-up of military advisors and authorized US assistance in overthrowing South Vietnam President Ngo Dinh Diem. This overthrow led to Diem’s assassination.

The most dramatic changes regarding the US military posture in Southeast Asia occurred under Johnson after he assumed the presidency. In 1964, there were a little more than 20,000 American soldiers in South Vietnam. By 1968, that number had mushroomed to more than half a million servicemen and women.

In a bit of irony, Johnson scored a landslide reelection victory in 1964 by claiming his opponent, Republican Senator Barry Goldwater of Arizona, would increase US troop presence in Vietnam. Goldwater countered that he had no desire to send more US soldiers to Southeast Asia. Johnson’s election promises proved to be more persuasive to American voters. Johnson won reelection. Immediately thereafter, Johnson ordered an increased US troop presence from about 25,000 to about 185,000 servicemen in just one year’s time.

McNamara later wrote that the decision to increase US troop levels was made just days after Johnson’s inauguration. The decision was made “without adequate public disclosure.”[i]

In 1969, Daniel Ellsberg was a civilian analyst at the Rand Corporation, a California-based think tank that analyzed military and international issues. Ellsberg was among the three-dozen individuals who compiled McNamara’s report. Prior to working at Rand, Ellsberg spent two years in Vietnam witnessing both the successes and the failures of US operations. Ellsberg reached the conclusion that nearly all Vietnamese simply wanted the war to end regardless of who won.[ii]

Ellsberg arrived in Vietnam a supporter of the war, and he left as a hardened opponent of US involvement in a war he considered unwinnable. He thought the McNamara report should be made public so that the American people would know the history and scope of US involvement in the region. In addition to the McNamara report, Ellsberg had a personal perspective he wanted to add. “I knew things about the situation in Vietnam worth passing on in my own voice,” he wrote in his memoir.[iii]

In September 1969, Ellsberg conspired with fellow Rand employee, Anthony Russo, to photocopy more than seven thousand pages of the top-secret report, with the intention of releasing them to the public. Over a period of months, Ellsberg was unsuccessful in his attempt to have several senators and National Security Advisor Henry Kissinger (working for the newly-elected Richard Nixon) publicize the report.[iv] After a series of disappointments, he decided to go to the press. By then, he had also taken a position as a research fellow at the Massachusetts Institute of Technology.[v]

Ellsberg approached the New York Times with his photocopy of the documents. In June 1971, the newspaper began publishing portions of the report, which was dubbed the Pentagon Papers.[vi] US Attorney General John Mitchell sought and received a prior-restraint federal court injunction to stop the newspaper from publishing further excerpts. The New York Times appealed the injunction and the case quickly made its way to the US Supreme Court.

The Washington Post, having also been given portions of McNamara’s report, began publishing excerpts only days after the New York Times started publishing the Pentagon Papers. Another federal court injunction was sought by the Justice Department to stop the Washington Post. However, this injunction request was denied. The US government appealed that decision and this case, too, found its way to the high court.

The floodgates had opened. Assisted by a large group of like-minded volunteers dubbed the Lavender Hill Mob, Ellsberg distributed to nineteen newspapers portions or entire copies of the Pentagon Papers.[vii]

The US Supreme Court combined both cases and agreed to hear New York Times v. United States. The court ruled 6–3 in favor of the newspapers. In his concurring opinion, Justice Hugo Black wrote:

Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly.[viii]

New York Times v. United States is a significant victory against prior-restraint (censoring articles pre-publication) and is viewed as a critical legal precedent that underscores the value and independence of a free press. The New York Times won a Pulitzer Prize for publishing the Pentagon Papers.

Bradley Manning had a troubled childhood. He appeared aimless until he acted on advice given to him by his father. In fall 2007, Manning enlisted in the Army shortly before his twentieth birthday. After basic training, Manning finished his requirements for the military occupational specialty of intelligence analyst. By 2008, he completed a special background investigation and was given a Sensitive Compartmented Information (SCI) clearance, which made him eligible to access top-secret SCI material.

In October 2009, Manning’s unit was ordered to deploy to Iraq. In his assignment, Manning was in an office where he had electronic access to thousands of classified intelligence documents. These documents provided a window into both the successes and the failures of US operations in Iraq. During this tour, Manning became a hardened opponent of the war in Iraq.

In early 2010, Manning began surreptitiously downloading thousands of intelligence messages and other classified documents to external media. He then transferred this classified material to his personal laptop. After just a few days, he copied nearly half-a-million classified documents.

Manning approached the New York Times and Washington Post with the stolen documents. Neither paper showed much interest, so in February 2010, Manning forwarded the classified information to WikiLeaks, which was known for publishing classified information often provided by anonymous sources. Founded in late 2006, WikiLeaks claims it does not induce anyone to break the law, but merely publishes material that is offered to the organization. The online organization began publishing some of the reports Manning provided.

A month later, Manning downloaded a quarter-million State Department messages and later forwarded them to WikiLeaks. Bradley Manning was behind the single largest leak of classified information in American history.[ix]

Among some of the classified material Manning downloaded over a period of weeks were videos, including one referred to as “Collateral Murder.” A pair of US Army Apache attack helicopters misidentified a group of Iraqi civilians as insurgents and misidentified camera equipment as weapons. The helicopters began an attack that killed several and wounded several more, including two children. Among the group were a pair of Reuters journalists. However, the video had been edited to ignore the presence of an insurgent armed with a rocket-propelled grenade launcher. The online posting of this video and other material stolen by Manning elevated the profile of WikiLeaks and its founder, Julian Assange.

In May 2010, Manning began an online conversation with a hacker and quickly confided he had stolen and leaked classified documents.[x] This information was reported to the Defense Department, resulting in Manning’s arrest. In June 2010, the Defense Department filed several charges against Manning regarding the stolen and leaked classified information. On July 30, 2013, after a military trial, Manning was found guilty of espionage and theft, and was sentenced to thirty-five years in the military prison in Fort Leavenworth, Kansas.

In January 2017, President Barack Obama issued executive clemency and commuted Manning’s remaining prison sentence.

After publication of the State Department messages, the Obama administration’s Attorney General Eric Holder announced WikiLeaks was the subject of “active, ongoing criminal investigation.” Holder falsely suggested it was illegal to publish leaked classified information.

The Obama administration argued WikiLeaks had an obligation to return any classified documents given to the organization instead of publishing them. Assange claimed the First Amendment protected the organization. Holder stated, “To the extent there are gaps in our laws, we will move to close those gaps, which is not to say that anybody at this point, because of their citizenship or their residence, is not a target or a subject of an investigation.”

In 2010, the Justice Department pursued a grand jury indictment of Assange over publication of the stolen Manning documents. In 2013 in response to media reports, the Justice Department denied the existence of a secret indictment against Assange after a three-year grand jury investigation.

Fearful he would be extradited from the United Kingdom to the United States to face charges, Assange sought and received asylum in the Ecuadorean Embassy in London in August 2012. He remained there until April 2019, when the Ecuadorean government under pressure from the US and British governments allowed London police to forcibly remove him from the embassy. Assange was placed in prison to await US extradition proceedings.

The Obama administration cleverly couched its pursuit of Assange as a violation of computer laws rather than espionage laws. This gave political cover for some US media organizations to look the other way, or to even support the apparent assault on press freedoms. In a blatant display of hypocrisy, two critics of Assange and WikiLeaks were the original Pentagon Papers publishers.

The New York Times described Assange as an “eccentric former computer hacker” who was “disheveled, like a bag lady walking in off the street” and “bombast and [held] dark conspiracy theories” in a scathing 2011 article. In a strongly worded editorial, the Washington Post criticized Ecuador for giving asylum to Assange.

This complacent attitude toward the pursuit of US criminal charges against Assange changed when new charges against the WikiLeaks founder, including espionage violations, were made public in 2018.

Thousands of the Manning documents were published by WikiLeaks. They were also published by the New York Times, the Guardian, and Der Spiegel, but espionage charges were not levied against those organizations.

By 2016, some in the Washington, DC media and political establishment turned on WikiLeaks as a media and whistleblower organization when it published emails from the Democratic National Committee (DNC). CrowdStrike, the company hired by the DNC to investigate the leaked emails, publicly claimed Russians hacked the emails. The FBI did not inspect the DNC servers and accepted the CrowdStrike claim at face value. But in a closed door Congressional hearing under oath, a CrowdStrike official gave sworn testimony the company had no evidence the emails had been hacked. Nor did it have any evidence the Russians were involved in the email theft.

In April 2017, Director of the Central Intelligence Agency Mike Pompeo (under President Donald Trump) said, “WikiLeaks walks like a hostile intelligence service and talks like a hostile intelligence service…It’s time to call our WikiLeaks for what it really is, a non-state hostile intelligence service.”

Pompeo continued, “Now, for those of you who read the editorial page of the Washington Post, and I have a feeling many of you do, yesterday you would’ve seen a piece of sophistry penned by Mr. Assange. You would’ve read a convoluted mass of words wherein Assange compares himself to Thomas Jefferson, Dwight Eisenhower, and the Pulitzer Prize-winning work of legitimate news organizations such as the New York Times and the Washington Post.”

In 1971, the New York Times and Washington Post received documents obtained illegally by another. In 2010, WikiLeaks received documents obtained illegally by another. All three outlets published those documents. The only difference between the two situations is the Times and Post publish on broadsheets. WikiLeaks publishes online. Everything else is the same.

Mark Hyman is an Emmy award-winning investigative journalist. Follow him on Twitter, Gettr, and Parler at @markhyman, and on Truth Social at @markhyman81.

His books Washington Babylon: From George Washington to Donald Trump, Scandals That Rocked the Nation and Pardongate: How Bill and Hillary Clinton and their Brothers Profited from Pardons are on sale now (here and here).

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[i] Robert S. McNamara, In Retrospect: The Tragedy and Lessons of Vietnam, (New York: Times Books, 1995), 169

[ii] Steve Sheinkin, Most Dangerous: Daniel Ellsberg and the Secret History of the Vietnam War, (New York: Roaring Book Press, 2015), 155-156.

[iii] Daniel Ellsberg, Secrets: A Memoir of Vietnam and the Pentagon Papers, (New York: Viking, 2002), 181.

[iv] Dana Priest, “Did the Pentagon Papers Matter?” Columbia Journalism Review, Spring 2016.

[v] Ellsberg, Secrets, 333-334.

[vi] In his memoir, Secrets (pp. 206–207), Ellsberg claimed he began leaking secret and top-secret classified documents to the New York Times in March 1968, three years before he leaked the Pentagon Papers.

[vii] Eric Lichtblau, “The Untold Story of the Pentagon Papers Co-conspirators,” The New Yorker, January 29, 2018.

[viii] New York Times Co. v. United States, 403 US 713 (1971).

[ix] Matthew Shaer, “The Long, Lonely Road of Chelsea Manning,” New York Times, June 12, 2017.

[x] Evan Hansen, “Manning-Lamo Chat Logs Revealed,” Wired, July 13, 2011.