Restoring the Constitution

Daniel Ellsberg is no stranger to wiretapping. Yet he had no trouble accommodating a journalist who requested permission to tape a recent phone interview. Since the host of his upcoming visit to Indiana will be the local chapter of the ACLU, we began our conversation there.

TPH: The theme of the ACLU-Indiana event banquet which you will address is: “Restore American Democracy: A Call for Change.” What kind of changes will you be calling for?

DE: [laughs] That’s a funny title. I guess they gave it that title. The theme I’ll be pursuing is “Our Constitutional Crisis: Must the U.S. Remain an Outlaw State?” Only it’s not a matter of “change,” it’s a matter of restoring our Constitution, which has been under assault now for seven years. And with some precursors before that under Clinton. So it didn’t all start under Bush.

The fact is Bush and Cheney operate under a theory of government that is at odds with our Constitution and our Bill of Rights, and they have pretty much enacted their theory. In other words, it’s not a matter of changing to a new government, it’s restoring checks and balances and an oversight function for Congress and a preeminent role for Congress in the issue of war and peace, which has been basically rejected or destroyed by this administration – and, as I say, with some precedents earlier. Article 1, section 8, which puts the power of war and peace with Congress, not the executive branch, has been under, let’s say, neglect ever since Harry Truman went to war in Korea in 1950 without a declaration of war, and right up to the previous administration – the Clinton administration – which conducted an air war in Kosovo and Serbia without Congressional declaration.

And in this most recent case, of course, the Congress was called on to support war against Iraq in November of 2002 and they did so, but they did so under a great deal of manipulation and false pretenses by the administration. In other words, as in Vietnam and the Tonkin Gulf resolution, Congress was lied into war. I don’t want to relieve them of all complicity here because it proved pretty easy to lie to them – much easier than it should have been. But the fact is they were given a very false picture of the situation and the Constitution was ignored in that instance.

But even more blatantly, since 2001 President Bush has simply flagrantly violated the law – the Foreign Intelligence Surveillance Act (FISA), in terms of warrantless wiretapping for 7 years now — and moreover has conducted torture since 2001 in violation of both domestic laws and international laws. And finally the signing statements are pretty much intended to negate the legislative function of Congress. So in all these respects, the President is actually acting beyond the law as an outlaw – as a criminal, to put it bluntly – for the past 7 years without effective oversight or checks by Congress.

The failure to hold impeachment hearings on what seems extremely solid grounds, which I’ve just described, amounts to complicity by Congress in this abrogation of the Constitution. Moreover we’re seen as an outlaw state by the international community for ignoring international law on torture and on aggression. The attack on Iraq without authorization by the U.N. Security Council is a flagrant violation of the U.N. charter, which is an international treaty which we’ve signed and are subject to. It means that we have committed and are in the process of committing a crime against the peace in the Nuremburg sense.

TPH: Excuse me, what was that a crime against?

DE: A crime against the peace. The crime of aggression. I was misquoted on that recently. I got arrested last Sunday and the papers said I was protesting “a crime against the American people.” My statement was actually “an American crime against the peace,” and they misheard that.

Of course the American people have been injured in this but not nearly as much as the Iraqis or international law. It would be like saying “Saddam Hussein’s crime against the Iraqi people” when he invaded Kuwait, for example.

Anyway, we have an administration that both in domestic and in international terms is an outlaw – a lawless regime.

TPH: We’ve had several leaks regarding this lawless behavior – the photos from Abu Ghraib, the Downing Street Memos – but they haven’t led to the kind of political changes like those that resulted from your leaking of the Pentagon Papers. What’s changed in the intervening years?

DE: There was a period of significantly more open government, and the Church Hearings on, among other things, illegal surveillance, led to the Foreign Intelligence Surveillance Act (FISA) of 1978. That was a direct result of the investigations that came out of both Watergate and the Pentagon Papers and the Vietnam War.

The Church Committee found all kinds of violations by the NSA and the FBI on surveillance, and corrections were made. But that concern kind of closed down in the ’80s, and we’ve had progressively more secretive government since then. The Clinton administration was much better in revealing old secret classified documents and upholding the Freedom of Information Act. But they were very secretive about their own operations and I don’t know how that would work in a new Hillary Clinton administration. Jack Nicholson said recently that he felt sure that she would run a more transparent government. I’m much less sure of that. She might go back to the Freedom of Information Act when it comes to materials 10 or 20 years old – I’d be glad to see that. But I don’t have any confidence she would be any more open about what her administration would be doing. Certainly McCain would not be. I don’t know about Obama.

TPH: Regardless of who gets elected, the new administration is going to inherit this incredible executive privilege power that has been asserted by the Bush administration.

DE: That’s right. I don’t have any confidence that any new president-unless he or she were pressed by the public and by Congress-would give up any of the new presidential freedoms of invading our privacy and new executive powers that have accrued.

Which one of them is going to tell the National Security Agency to stop collecting all this information on Americans? I don’t foresee that. I hope it’s not irreversible. But if it is reversible it’s going to have to be by action outside the executive branch, and that means by Congress, and that means by pressure on Congress by the public and in particular by the legal community. I would like to see lawyers and judges speaking out more explicitly about the injuries that have been done to our Constitution.

TPH: You’ve written and spoken about the “urgent need for demonstrating civil courage.” Is this what you’re talking about by asking lawyers and the public to step up and increase the pressure on Congress and the White House?

DE: Yes. It always takes some degree of courage for ordinary citizens or members of the establishment to speak in opposition to the President, but it takes even more for officials who are hired by the President to tell the truth when he or she doesn’t want it told. I’m not talking about officials breaking the law. I’m talking about their observing the law against the wishes of their agency heads or their superiors or the President when those people are breaking the law. After all, these people have been involved in breaking the law and the Constitution very regularly for the last 7 years, and as I say, some of that really goes back earlier.

It’s time now for people at the lower levels to begin to observe their oath to the Constitution and their oath of office. Their oath of office is in every case not to the President; it is to “support and defend the Constitution” as it is written. And the President has not been doing that – a number of presidents have not been doing that – and generally their subordinates have been following them in that lawbreaking by keeping silent about it and obeying orders. It’s time for them now to begin observing the laws by speaking truthfully to Congress and the public when they know that laws are being broken.

TPH: It seems that leaking has changed since the Pentagon Paper days, and now it’s being used by government officials as a form of intimidation – I’m thinking of the Plame leak.

DE: That’s not a matter of a trend. Most leaks – that is, disclosures of information that the government has classified – most of that has always been done by agency heads and by the White House for their own purposes. That’s been true before and that’s true now and it’s always true. In other words, most so-called leaks are really authorized disclosures even though they violate the classification rules.

For example the Plame leak had a very clear precedent in the efforts to defame me or to intimidate me by trying to get secrets out of my doctor’s office, by overhearing me on illegal wiretaps and so forth – that goes back to Nixon. They intended to leak information or to threaten to leak information on me in order to intimidate me. So there’s nothing new; the Plame leak was exactly like that.

There is more leaking now that’s genuinely unauthorized; in other words, unauthorized disclosure of information that the agency heads or the President really don’t want out because it would embarrass them or incriminate them. There is more of that than there used to be; unfortunately it hasn’t taken the form of documents that are irrefutable and it hasn’t led to hearings.

I must say the Pentagon Papers didn’t lead to hearings either, because the Democrats in charge took a look at those papers and decided that they didn’t want hearings that would largely incriminate the Democrats. So they didn’t hold hearings either. But at least the papers were there for everyone to read and they couldn’t say, “Oh, whoever’s saying that wasn’t in the loop” because these were documents signed by the Secretary of Defense.

So we haven’t had much of that now, unfortunately. I don’t know if you watched the recent “Frontline” series. It was very interesting but I couldn’t help but feel that a lot of those people speaking, like Paul Pillar from the CIA – who regrets having written the “white paper” which was full of misleading statements – he regrets being a part of that, yet it would have been so much better if he had told us that at the time. It might have avoided a war. It’s true not only of Pillar but of a number of other people: Lawrence Wilkerson, who was chief of staff to Colin Powell, Richard Clarke – they were both on that program. They’ve told us a lot since they left government and that’s to their credit. But if they had told it before, while they were in office, they could have averted a war.

TPH: Perhaps inadvertently, the “Frontline” piece illustrates the mainstream media’s complicity in the Bush administration’s success.

DE: Yeah. There’s no question about that. For instance, they talked quite a bit about the aluminum tubes and how critical that story was and how much it was played up. I noticed on the screen, they showed the story on the front page story of the New York Times, and what has drawn almost no attention ever is the fact that the stories weren’t only by Judith Miller, whose complicity has been pretty well established by now – she’s almost been run out of the profession; she was fired by the Times and I don’t think she’s playing much of a role now in journalism at this point, and rightfully so. But the number one name on that story’s byline was Michael Gordon. Now Michael Gordon is still writing stuff for the Times and really he’s done as much, I would say, to promote war with Iran as in Iraq. He was very important in the case of Iraq and he’s been pushing I would say for staying in Iraq – that’s the way I read his stories there. He’s a big advocate of the surge as well as writing stories pointing to war with Iran. He has never drawn the critical eye that Judith Miller has and yet his name was on a number of her stories.

TPH: You mention war in Iran. You’ve written and spoken out frequently on the topic. Do you think the possibility has become less likely?

DE: Well, it goes up and down. There are contradictory events that come along. The National Intelligence Estimate on Iran certainly weakened or destroyed the case for attacking Iran based on nuclear weapons. It was very credible and I believe truthful. I read that it was made public because intelligence officers were “lined up to go to jail” rather than see it suppressed – that is, kept inside the government. In other words, if it were not released to the public they were prepared to put it out themselves and if necessary face prosecution. That was the kind of thing I have been calling for. They got it out and that was very helpful.

On the other hand, U.S. Central Command commander Admiral William Fallon, who has been very candid about his views on how we should not go to war against Iran, was essentially fired, or was forced to resign. That’s a bad sign. It might indicate that they’re on the verge of attacking or it might not. (The best guess now seems to be that he was fired because he disagreed with the policy in Iraq that his subordinate General Petraeus and President Bush are about to announce, slowing down withdrawals of the surge forces and keeping the pre-surge levels of troops there at least through the fall. ) His interview in Esquire was challenging or provocative, I would have to say – it would have been under any president. But in any case, even if he was fired for speaking too frankly about policy or for wanting faster reductions in Iraq, the fact is that they have removed one of the main obstacles to an attack on Iran. It would now be easier to get that through when Fallon was in place where he could provide direct opposition to that from inside the government. So that’s a very bad sign.

And of course, the president has gone out of his way to say he simply does not accept the conclusions of the National Intelligence Estimate – he doesn’t agree with it. And Cheney has been saying that, essentially, on his Middle East trip and perhaps lining up support for an Iran attack. [Note, 3-31-08: Michael Hayden, head of the CIA, has just joined this administration chorus of “personal” disagreement with the NIE.] So what it adds up to is I think the chance of an attack looks somewhat lower than it looked before the NIE but still very significant – far above zero. And I’m very concerned about it in the remaining months of the Bush administration.

So I think that it would be very patriotic for someone to show the courage to put out documents that would demonstrate the determination of the White House – Bush and Cheney – to move ahead on an attack on Iran and alert the world and alert us and Congress to the fact that they do still envision an attack on Iran, which I suspect is still true.

Congress still has not held investigative hearings on our policy with respect to Iran. If they did hold hearings, they could call witnesses-starting with Admiral Fallon– who would be happy to testify under oath truthfully and to give expert opinion on how costly that would be and what the plans are. What we need is public pressure on Congress to hold those hearings, but it hasn’t happened yet.

TPH: How do you gauge the current state of the nuclear threat that the Bush administration poses to the world?

DE: They have been promoting the idea of first-use of nuclear weapons in a variety of circumstances, including now the mere possibility that a country will develop nuclear weapons – not that they have the weapons but even to prevent them from getting the knowledge – that refers to Iran specifically.

Now, I think that the military opposition to the idea of a nuclear attack on Iran by the Army in particular has certainly reduced the likelihood of that since it was first exposed by Seymour Hersh in 2006 in The New Yorker and by Philip Giraldi in various places. There again, leaks to Sy Hersh and others were crucial in raising that issue and keeping the administration from doing that. Again, that’s not zero probability. If a war with Iran actually started I think the chance of escalation over a brief period of time to nuclear attacks on their underground sites is very serious, and it doesn’t have to be very high to be very serious. A 10 percent chance would be very serious – even a 5 percent chance and I think it is that high.

In general, of course, the Bush administration’s refusal to adopt a policy of no-first-use is an invitation to the rest of the world to imitate us and to acquire nuclear weapons for those threat-uses for intimidation that the U.S. relies on. So it precludes an effective program against proliferation. U.S. policy – and here I have to say it doesn’t start with Bush but Bush has certainly amplified it – the U.S. policy of threatening nuclear weapons doesn’t just undermine, it essentially destroys the possibility of an effective non-proliferation policy. You can’t stop proliferation while we’re continuing to threaten the rest of the world with using our weapons first.

TPH: One last thing. How do you maintain your optimism and enthusiasm for your work?

DE: [laughs] Well, optimism would be definitely too strong a word if that means that I think that we’ll surely avert these disasters. What I have is hope, and I have enough hope to keep me going. But that doesn’t require a lot of hope because the stakes are so high. The importance of averting nuclear war and the importance of regaining our democracy are such transcendent stakes that even a small chance of reversing these attacks on the Constitution and these threats of nuclear war makes efforts much greater than mine worthwhile. They’re still at it, so I’m still at it.

THOMAS P. HEALY is a journalist in Indianapolis. He can be reached at

Daniel Ellsberg’s Web site is