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Facing the Music: Doing the Crime, Doing the Time and the Long Shadow of the 1917 Espionage Act

Putting the First Amendment, national security and America’s most (in)famous leakers — Daniel Ellsberg, Julian Assange, Edward Snowden and Chelsea Manning — in context.

Daniel Ellsberg, former military analyst who released the Pentagon Papers in 1971, gives the peace sign during a protest Dec. 16, 2010, in front of the White House in Washington, D.C. Ellsberg died on June 16, 2023 at age 92.
(Karen Bleier/AFP/Getty Images/TNS)
To My Readers:

With real regret I have to inform you that this will be my last contribution to Governing. I've loved writing in this space. Thank you for reading my words and thanks to those of you who took the time to write me a note of praise, correction, suggestion or complaint. We need more, not less, feedback. I've begun a very exciting new venture called Listening to America, a nonprofit site for telling the story of America – where it has been, where it is and, importantly, where it's going. It is home to my essays, interviews and book reviews, complete with photos, video and audio. My long-running podcast and public radio program The Thomas Jefferson Hour has been rechristened with the new name too. For the next 10 years I'm going to be wandering around America in the manner of my hero John Steinbeck, trying to get the pulse of America as we observe (and I hope celebrate) our 250th birthday (July 4, 2026). I'll be pulling an Airstream trailer. Our themes are wide as America: water in the west, the atomic west, Theodore Roosevelt's conservation footprint, the future of food and agriculture, the great portrait photographer Edward S. Curtis, Lewis and Clark and of course Travels with Charley. I invite you to join me on this journey by signing up for my new newsletter. Thanks to the editorial staff of Governing for publishing my words. 

- Clay

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When Daniel Ellsberg leaked the Pentagon Papers to the New York Times in 1971, he knew three things. First, he was breaking federal law. Second, he was very likely to go to prison. And third, he was willing to spend much of the rest of his life in a federal penitentiary as the personal “cost” of ending the disastrous war in Vietnam.

In the end, the charges against Ellsberg under the 1917 Espionage Act were dropped by Judge William M. Byrne Jr. The charges were dismissed not on their merit — Ellsberg would probably have been found guilty — but because of misconduct by the Nixon administration. Nixon himself had authorized the September 1971 break-in of the office of Ellsberg’s Los Angeles psychiatrist Dr. Lewis Fielding. Ellsberg’s phones were illegally tapped. And Nixon aide John Ehrlichman offered the presiding judge the directorship of the FBI with the implied requirement that he make sure Ellsberg was convicted.

The point I wish to make is that Ellsberg committed the crime, and he was willing to do the time.

Leaking top secret government documents is a very serious matter. That’s why the U.S. government tends to throw the book at those who arrogate to themselves the right to leak such documents. Just a few weeks ago, for example, retired Air Force Lieutenant Colonel Robert Birchum was sentenced to three years in federal prison for possessing and retaining classified documents at his Florida home. Had he not entered into a plea agreement, Birchum would almost certainly have received a much tougher sentence. In 2015 General David Petraeus avoided serious prison time for sharing classified documents with his lover Paula Broadwell by pleading guilty to a misdemeanor of mishandling classified documents, paying a fine of $40,000 and serving two years probation.

The Social Contract

This is one of those rare situations in which it may be useful to look back to the classical world. The Athenian philosopher Plato (ca. 428-348 BCE) wrote approximately 35 dialogs laying the groundwork of western philosophy. The British philosopher A.N. Whitehead said, “The safest general characterization of the European philosophical tradition is that it consists of a series of footnotes to Plato. “Many of Plato’s dialogs featured his friend and teacher Socrates (469-399 BCE), the magnificent philosophical interlocutor and gadfly who was condemned to death by Athens for impiety and corrupting the youth.

Plato’s dialog Crito was written in 360 BCE. The Crito is about the last days of the life of Socrates. Crito, a wealthy Athenian and admirer of Socrates, tells the aging philosopher that he has worked out a plan to bribe the jailers and spirit him off to an undisclosed location in Thessaly, where Crito and his friends would be honored to take care of Socrates for the rest of his life. Time is of the essence, because Socrates will be forced to drink the hemlock as soon as a certain ship returns to Athens.

Socrates gently rebukes his friend. His argument is that when you are born and reared (educated) in a state (city-state or nation-state) you have entered into an implicit contract with that state. In return for the blessings of civilization, including law and order, you tacitly agree to abide by the state’s laws and rules. The state serves you — protects your property, defends against foreign invasion, gives you a voice in public affairs — and you in turn must be willing to do your part, the chief of which is to obey the laws of the state. If you break the laws (Socrates has been found guilty), you must accept the state’s remedy (in this case, execution). You cannot decide selfishly which laws to obey and which to violate. You cannot spend your life enjoying the blessings of a civilization and pick and choose what parts of the social contract to abide by. If everyone carved out exceptions for themselves whenever they butted up against the law, the state would break down. It is essential to obey even unjust laws. If you regard a certain law as unjust, the proper response is to try to persuade the state to reform or rescind it. Thus, for Socrates, the only just thing to do is to accept the verdict of Athens and pay the penalty (death). That’s what it is to be a true citizen.

And that’s just what happened. The ship returned. Socrates drank the hemlock cocktail on Feb. 15, 399 BCE. Plato’s fabulous dialog The Phaedo recounts the last hours of Socrates’ life, in which — inevitably — he engages in philosophical dialog with his closest admirers.

Daniel Ellsberg accepted the state’s right to indict him, put him through trial, and, if found guilty, to imprison him for a very significant length of time. He attempted to argue at the trial that in trying to stop the ruinous war — being fought on a foundation of lies and deceptions — he was obeying a higher law, but Judge Byrne rejected that line of argument out of hand. Ellsberg either did or did not violate the Espionage Act.

Ellsberg is mostly forgotten today, though his leak of the Pentagon Papers was one of the most consequential acts of the last 50 years in American public life. Today’s Americans are more familiar with the leak crises involving Edward Snowden, Chelsea Manning and Julian Assange.

Edward Snowden
Edward Snowden was portrayed by the UK's The Guardian newspaper as a mediocre student with a GED degree who joined the Army in 2003, but was discharged after breaking his legs in a training accident. He later wound up working with the CIA and then a contractor because he's skilled at computer programming. (
Edward Snowden (1983- ) is a former U.S. computer intelligence consultant who leaked highly classified National Security Agency (NSA) information in 2013. The disclosures pertained to global surveillance programs operated by the NSA, with the cooperation of some telecommunication corporations and European governments. Snowden claims that he attempted to raise ethical concerns about the surveillance program through proper internal channels, but he was ignored. On May 20, 2013, he flew to Hong Kong, where he leaked thousands of classified NSA documents to four journalists. After the Washington Post and the U.K. Guardian published stories based on the leaks, the U.S. Justice Department charged Snowden of two counts of violating the Espionage Act. The State Department revoked his passport.

But Snowden was no Socrates (or Ellsberg). Instead of returning to the U.S. to face the charges, Snowden flew to Moscow. The Russians detained him in the airport terminal for a month, before granting him the right of asylum. In 2020 he was granted permanent residency in Russia and in September 2022 he was granted Russian citizenship by President Vladimir Putin. He swore an oath of allegiance to Russia. Had Snowden returned to the U.S. for trial, he might or might not have been convicted (almost certainly yes), but he would not have been, like Socrates, condemned to death.

Julian Assange
WikiLeaks founder Julian Assange, emprisoned in the UK, now faces extradition and an uncertain fate in the US. (Reuters)
Julian Assange is an Australian activist and publisher who in 2006 founded WikiLeaks, which specialized in leaking public documents. In 2010, in partnership with five newspapers, WikiLeaks published a series of documents provided to him by U.S. Army intelligence analyst Chelsea Manning.

Eventually Assange was granted asylum in London by the nation of Ecuador (August 2012). He lived for seven years under spartan conditions at the Ecuadorian Embassy in London. On April 11, 2019, Assange’s asylum was revoked by Ecuador. He was arrested for breaching Ecuadorian bail protocols and sentenced to almost a year in prison. At the same time, the U.S. government unsealed indictments charging him with conspiracy (with Manning) and violations of the Espionage Act. When Ecuador forced him to leave the embassy, he was taken into custody by the Metropolitan Police on behalf of the British government.

Since 2019, Assange has been incarcerated at Belmarsh, a Category A prison located in London. A U.K. judge initially blocked a U.S. extradition attempt, but on Dec. 10, 2021, the High Court in London ruled that Assange could be extradited to the U.S. to be tried. The U.S. government has been inconsistent in its handling of the Assange case. He remains at Belmarsh. The events of 2010 are now so far in the past that it is unlikely that the Justice Department will bring him to the U.S. for trial.

Chelsea Manning
Chelsea Manning.jpg
NPR reporeded that "army intelligence analyst Chelsea Manning provided hundreds of thousands of military and diplomatic records about the wars in Iraq and Afghanistan to WikiLeaks in what's regarded as the largest leak of classified records in U.S. history. To some, Manning is a heroic whistleblower; others, including the U.S. military, consider her a traitor." (

Chelsea Manning is a former U.S. Army soldier and social activist who conspired with Assange to release secret documents. She was convicted by court martial in July 2013 of violations of the Espionage Act. She had helped WikiLeaks release 750,000 classified documents, and unclassified but highly sensitive documents. Sentenced to 35 years in prison, Manning was incarcerated from 2010-2017, when her sentence was commuted by President Barack Obama. She subsequently went back to prison several times for refusing to testify before a grand jury investigating WikiLeaks. She was finally released in 2020.

What Would Socrates Say?

The fate of Daniel Ellsberg, Julian Assange, Edward Snowden and Chelsea Manning (among others) raises serious questions about national security, the First Amendment, government transparency, whistleblowing, documents security in a digital world and the continuing reach of the Espionage Act of 1917, passed by Congress during a period of domestic paranoia brought on by World War I. The recent discovery that a number of America’s top leaders have illegally retained classified documents after they left office and the government’s attempt to distinguish accidental or inadvertent document retention (Vice President Mike Pence) from willful or malicious retention or destruction of documents (David Petraeus) would seem to necessitate the reform or replacement of the existing Espionage Act with greater specificity about the post-administration status of classified documents and greater integration with the Presidential Records Act of 1978.

Socrates says in the Crito that a person has a right to leave his country if they think that the laws are unjust. But once you violate the laws of the state your duty is to stay and face trial. Assange and Snowden have both justified their flight from American jurisdiction because of what they regard as the impossibility of receiving a fair trial in the United States. This may be true, but Socrates would say that their flight and exile violate the social contract (at least in the cases of Snowden and Manning) and damage their moral credibility. The trial becomes the accused’s platform to say, “here I stand, I could do no other,” and “I feel so strongly about the malfeasance of my government that I am willing not just to break the laws to bring these secrets to the public’s attention, but I am willing to go to prison because it is that important.” In other words, the willingness to go to prison deepens the moral validity of the act of leaking secrets, and it increases the likelihood that the person in question will be regarded as a martyr to truth and justice rather than a coward who did the deed and fled.

In a sense, Daniel Ellsberg got it both ways. He faced his accusers, but in his case the Nixon administration was so corrupt and comically inept (attempting to bribe a U.S. judge) that the state lost the credibility to judge his actions. I’m guessing Socrates would make short work of Snowden, who was an American citizen, and probably Assange, too, though his Australian citizenship complicates the case.

Thus far, former President Donald Trump has not formulated a legal defense of his retention of classified documents, and the evidence (so far) seems to indicate that he did not “publish them.” He retained, but he did not leak.
Clay S. Jenkinson is a historian and humanities scholar based in North Dakota. He is founder of both the Theodore Roosevelt Center and Listening to America. He can be reached at
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